Fair Work Act 2009

s.234 - Application for an intractable bargaining declaration

Application by Australian Salaried Medical Officers Federation

Application for an intractable bargaining declaration; workplace determination - medical practitioners - history of sector-wide bargaining - two matters still in issue - wages and education expenses - the merits of the case - bargaining in context of agreement made for the remainder of the ACT public sector - cost of living - maintenance of real wages - flat dollar increases - appropriateness and reasonableness of distinguishing one group of employees - no compelling basis to distinguish a group of workers - workplace determination to be made.

[1] The Australian Salaried Medical Officers Federation (ASMOF) and the Australian Medical Association (ACT) (AMA) have been bargaining with the Australian Capital Territory as represented by Canberra Health Services (CHS) for a new enterprise agreement. Bargaining commenced on 21 February 2022 and has largely been successful.

[2] However, the parties remain in dispute about the level and timing of wage increases for medical practitioners. There is a separate question about whether the terms of a Medical Education Expenses clause have been agreed.

[3] On 9 October 2024, ASMOF applied to the Commission for an intractable bargaining declaration to resolve the outstanding bargaining items. An intractable bargaining declaration was made by Deputy President Dean on 12 November 2024.[1] This decision now determines the dispute for the purpose of the making of a workplace determination to be known as the ACT Public Sector Medical Practitioners Workplace Determination 2025.

[4] CHS is the Government directorate responsible for the provision of health services in the Australian Capital Territory (ACT). It provides public hospital and other public health services to the ACT's population of approximately 470,000 people. It also provides services in the Southern NSW Local Health District, with a population of approximately 210,000 people.

[5] The health services provided by CHS include:

• (a) three public hospitals;

• (b) a specialist palliative care hospice;

• (c) several community-based health services, including seven Community Health Centres, five nurse-led Walk-in Centres, and several early childhood, youth and women's health and dental health services; and

• (d) Mental Health, Justice Health, Alcohol and Drug Services for detainees in custodial facilities.

[6] In providing health services, CHS is required to have regard to the objectives set out in s.10 of the Health Act 1993 (ACT) (the 'Health Act'). Those objectives include: to improve the efficiency, effectiveness and quality of health services, to maintain a strong and viable public hospital system and a full range of community health services, and to foster disease prevention and primary health care.

[7] Employees working in CHS are employed as public servants in the ACT Public Service (ACTPS) by the ACT as represented by CHS (referred to in this decision as 'the Territory').

[8] As at 31 January 2025, approximately 35% of the ACTPS worked in CHS, comprising 10,967 employees, including 1,333 medical practitioners (approximately 12.15% of CHS's employed workforce, and approximately 4.5% of the ACTPS).

[9] Parties were bargaining for a new enterprise agreement to replace the ACT Public Sector Medical Practitioners Enterprise Agreement 2021-2022 (2022 Agreement). The 2022 Agreement and earlier related enterprise agreements have also been generically referred to as the Medical Practitioners Enterprise Agreement (MPEA).

[10] The 2022 Agreement commenced on 18 January 2022 and nominally expired on 31 October 2022. Clause 2 of the 2022 Agreement stated that its purpose was to provide a 'fast-tracked interim Agreement for a period of 12 months in recognition of the added burdens imposed on the ACT Public Sector workforce as a consequence of the Covid Pandemic'.

[11] The 2022 Agreement provided for two 1.35% pay increases in December 2021 and June 2022. In 2022 the predecessor agreements were rolled over by consent. There is a large spread in pay rates under the current 2022 Agreement. For example, the base rate of a senior specialist is more than three times the base rate of an intern.

[12] It is not in dispute that:

• (a) almost every employee in the ACTPS is employed under an enterprise agreement;

• (b) there are 19 enterprise agreements that cover the ACTPS;

• (c) each enterprise agreement includes a set of common core provisions and a set of sector specific or directorate specific provisions;

• (d) common core provisions include rates of pay, pay increases and pay related matters;

• (e) the negotiation and implementation of common core provisions has been in place for some years and promotes 'consistency and fairness across the ACTPS';

• (f) common core conditions are negotiated centrally between the Office of Industrial Relations and Workforce Strategy (OIRWS) and interested unions;

• (g) the most recent round of bargaining commenced in February 2022 for enterprise agreements to apply from 2023 - 2026;

• (h) at the same time that bargaining meetings took place regarding the core conditions, CHS conducted parallel meetings regarding the MPEA for its employees, including meetings with ASMOF and the AMA;

• (i) all bargaining representatives for the other 18 enterprise agreements reached agreement on 11 April 2023;

• (j) the current bargaining dispute means that the MPEA is the only enterprise agreement not finalised following the 2023 - 2026 bargaining round; and

• (k) all other ACTPS employees are now covered by new enterprise agreements reflecting the agreement reached in April 2023.

[13] Agreed draft determinations containing the agreed terms were filed in accordance with s.274 of the Act. We accept that the agreed draft determinations contain the agreed terms for the purposes of s.274 of the Act.

[14] Terms dealing with the appropriate level of wage increases are still in issue and are not agreed terms.

[15] There is a further remaining issue (the terms of the Medical Education Expenses clause) and a dispute about whether it constitutes an 'agreed term'. ASMOF and CHS have been in agreement about the terms of a proposed clause since June 2022. However, the AMA neither opposed nor agreed with the change. As such we will treat the matter as 'still in issue' rather than 'agreed'.

[16] We deal with each matter still in issue separately.

[17] The competing wage claims of the parties are summarised in the table below.

*Proposal for increases to be payable from the first pay period after this date.

**The basis of the AMA proposal for wage increases is that they should be equivalent to the relevant Consumer Price Index (CPI) + 1%.

[18] The Territory also proposed:

• (a) a one-off cost of living supplement of $1,250 for all employees working at 0.5 FTE or above (pro rata), which was external to the agreement;

• (b) superannuation increases of 0.5% from 1 July 2025; and a further 0.5% from 1 January 2026; and

• (c) a minimum full-time equivalent salary floor of $62,860 from December 2024.

[19] Under s.235 of the Act, the Commission may make an intractable bargaining declaration in relation to a proposed enterprise agreement. Before making a declaration, the Commission must have dealt with the dispute with the applicant's participation and must be satisfied both that there is no reasonable prospect of an agreement being reached, and that it is reasonable in all the circumstances to make the declaration.

[20] If an intractable bargaining declaration has been made in relation to a proposed enterprise agreement, the Commission must make an intractable bargaining workplace determination as quickly as possible after making the declaration, or after the end of any post-declaration negotiating period for the declaration under s.235A (s.269).

[21] The making of an intractable bargaining workplace determination involves the Commission's exercise of limited arbitration powers to determine particular terms of an industrial instrument where the parties have been unable to reach agreement. Clearly this arbitration power is only available in very limited circumstances and only when the bargaining parties (bargaining representatives as well as parties to the proposed agreement) cannot reach agreement by themselves in relation to a proposed agreement.

[22] The resultant workplace determination must (and must only) contain the terms set out in s.270 (agreed terms and terms dealing with the matters at issue), the core terms (s.272), and the mandatory terms (s.273).

[23] Section 275 of the Act provides a non-exhaustive list of matters that the Commission must take into account in deciding which terms to include in a workplace determination. These are:

(c) the interests of the employers and employees who will be covered by the determination;

(ca) the significance, to those employers and employees, of any arrangements or benefits in an enterprise agreement that, immediately before the determination is made, applies to any of the employers in respect of any of the employees;

(e) how productivity might be improved in the enterprise or enterprises concerned;

(f) the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement;

(g) the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements;

(h) incentives to continue to bargain at a later time."

[24] Sections 577(1) and 578 provide further guidance on the exercise of the Commission's powers. Under s.577(1) such powers must be exercised in a manner that is fair and just, quick, informal and avoids unnecessary technicalities, is open and transparent and promotes harmonious and cooperative workplace relations. Under s.578 the Commission must take into account the objects of the Act, as well as equity, good conscience and the merits of the matter as well as the prevention and elimination of proscribed discrimination.

[25] Of particular relevance in the present case are the objects of Part 2-4 of the Act (Enterprise Agreements) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits, and to enable the Commission to facilitate good faith bargaining and the making of enterprise agreements including through dealing with disputes where the bargaining representatives request assistance.

[26] In Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd [2024] FWCFB 287 at 287 (Cleanaway Erskine Park), a Full Bench of the Commission observed that the terms of s.275 should be construed consistent with the earlier authorities. Relevantly, those include Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Curragh Queensland Mining Ltd (1998) 43 AILR 3-860 (Q4464) (Curragh), Transport Workers' Union of Australia v Qantas Airways Limited [2012] FWAFB 6612; (2012) 225 IR 13 (Qantas), Schweppes Australia Pty Ltd v United Voice - Victoria Branch [2012] FWAFB 8599, [2012] 226 IR 336 (Schweppes) and Parks Victoria v The Australian Workers' Union [2013] FWCFB 950; (2013) 234 IR 242 (Parks Victoria).

[27] To this we would add one further observation. Amendments introduced by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 imposed new limits on the exercise of the Commission's arbitration powers when making a workplace determination. Although it does not apply in relation to terms providing for a wage increase, the new s.270A requires that any term included in a workplace determination for the purpose of dealing with a matter at issue must not be less favourable to each of the employees and union bargaining representatives than a term of an enterprise agreement that applies to the employees who will be covered by the determination and deals with the matter.

[28] By effectively setting a floor under existing enterprise agreement terms, this provision has the potential to discourage compromise in bargaining on potential trade-offs in any replacement agreement. This is a relevant consideration in the making of workplace determinations having regard to the objects of Part 2-4 and in particular, the emphasis on collective bargaining at the enterprise level. Workplace determinations have a place in the legislative scheme where bargaining has failed, but they should not become a vehicle of choice in preference to enterprise agreements made directly between the parties.

[29] In Qantas, a separate Full Bench of the Commission described its task in the making of a workplace determination as follows (at [28]-[29]):

"The factors in s.275 have a general bearing on the package of terms to be contained in the Workplace Determination and a more specific bearing on many of the particular claims. Both parties contended that the approach of a Full Bench of the Australian Industrial Relations Commission under predecessor legislation in CFMEU v Curragh Queensland Mining Ltd (the Curragh Case) [(1998) 43 AILR 3-860 (Q4464)] should be adopted. We agree that this is a leading case dealing with the approach to similar legislation in the same context as the present case and deals with many of the same factors we are required to take into account. When amending legislation adopts wording or tests from predecessor legislation it is inferred that the legislature intended that authorities dealing with the predecessor legislation will continue to apply. While there are some changes to the wording of the factors to which regard must be given, the provisions are substantially the same.

In particular we note the consideration by the Full Bench of the earlier authorities and the endorsement of the approach that the task of the tribunal in a matter such as this is to assess the respective positions of the parties in relation to the matters at issue and, by reference to the statutory factors, arrive at a conclusion that would be regarded as appropriate in the context of the bargaining had the bargaining concluded successfully. The Full Bench in the Curragh Case noted that this did not involve a form of subjective prognostication as to the outcome of the negotiations. Rather, the task involves an objective assessment of the statutory factors and an overall judgment as to an appropriate workplace determination to apply to the operations concerned until the parties replace the determination with a new enterprise agreement."

[30] In Parks Victoria at [167] and [174], the Full Bench distinguished between the Commission's task under s.275 and the making or varying of an award:

"But the task we are presently engaged in is quite different to the making or variation of an award. As explained by the Full Bench in [Curragh] the task of the Commission in a matter such as this is to assess the respective positions of the parties in relation to the matters at issue and, by reference to the relevant statutory factors, arrive at a conclusion that would be regarded as appropriate in the context of bargaining, had the bargaining concluded successfully. Such an approach does not involve a form of subjective prognostication as to the outcome of the negotiations, but rather involves an objective assessment of the statutory factors and an overall judgement as to an appropriate determination to apply to the operations concerned until the parties replace the determination with a new enterprise agreement.

In determining the level and operative date of wage increases in a workplace determination the Commission is seeking to arrive at an outcome which is fair in all the circumstances and that takes account of the factors in s.275 (and ss.557 and 578). Importantly, those factors include merit (s.275(a)) and the interests of the parties (s.275(c))."

[31] The reference to an outcome that is "fair in all the circumstances" drew from an earlier Full Bench decision in Schweppes at [130]:

"As to Schweppes' first point we are not persuaded that real wage maintenance is the dominant consideration in determining the level of wage increases in a workplace determination. Determining the level of wage increases in this context does not lend itself to the adoption of a decision rule or a mathematical formula. Fundamentally the Tribunal is seeking to arrive at an outcome which is fair in all the circumstances and that appropriately balances the interests of the parties. The factors in s.275 and ss.557 and 578 of the Act are also relevant and must be taken into account."

[32] Two particular features of the current dispute are similar in important respects to the underlying facts in the Qantas and Parks Victoria disputes and the decisions that followed: in relation to Qantas, the interrelationship between employees covered by the determination and other groups of employees of the same employer, and in relation to Parks Victoria, that employees to be covered by the determination are public sector employees.

[33] In Qantas the workplace determination arose from failed bargaining for a new enterprise agreement to cover ground handling operations. The negotiations were aimed at reaching a replacement agreement intended to be known as EBA8 (Qantas at [8]-[9]). The Full Bench found:

• (a) EBA7 was an appropriate starting point because it represented the package of terms the parties have previously agreed to apply, the terms under which the parties were operating, and the basis for the negotiations conducted by the parties (at [34]);

• (b) the practices of other employers in the airline industry and the terms and conditions applying to their employees are capable of being relevant to the fairness of particular terms as well as the appropriateness of the package of benefits in a highly competitive environment, particularly noting that in many respects, the wages and conditions of the employees covered by the arbitration were the highest or among the highest of comparable employees in the airline industry in Australia (at [35]);

• (c) the extent to which the parties have been prepared to deal with matters in enterprise bargaining negotiations and their approach to such matters for this and other groups of employees will also be relevant. Such practices may provide a guide to deciding what provisions are fair and reasonable in a workplace determination applying at this enterprise (at [37]); and

• (d) after arbitrating various other conditions of employment the Full Bench decided that the increase in wages should be 3% per annum, which was the same increase "usually provided" to employees covered by the determination and "usually provided" to other Qantas employees. The Full Bench considered 3% to be "in line with appropriate other measures and has due regard to the current circumstances of the employees and Qantas" (at [95]-[97]).

[34] In Parks Victoria bargaining took place in the context of the Victorian Government's published wages policy that capped available pay increases. The employer had significant budgetary constraints that created pressure to achieve cost savings (at [16]-[22]). In that matter:

• (a) the position taken by the employer in the proceedings was heavily influenced by the Victorian Government's wages policy (at [201]);

• (b) the Victorian Government's wages policy provided for increases of 2.5% per annum and permitted further wage increases "which can be funded from identifiable and costed productivity savings derived from genuine workforce reform" (at [202]);

• (c) the wages policy was said (by the employer) to be "sound, fiscally responsible economic management, consistent with economic principles which seeks to improve the living standards of all Victorians";

• (d) the employer argued that the consequences of providing wage increases which go beyond the policy were likely to have a negative impact on the State's economic growth and would put at risk its fiscal sustainability; and

• (e) the unions argued that the government's wages policy was "no more than a negotiating position" and the Commission should give it no greater weight than that.

[35] The Full Bench said at [207]:

"In our view, the Victorian Government's wages policy is relevant to our consideration of the level of wage increases to be included within the workplace determination. The policy is, of course, not determinative of that issue, however, given the size of the state government sector and the role of the government in allocating scarce resources to various public services (such as health, education and justice) it is appropriate to accord the policy more weight than one would to the negotiating position of parties without such responsibilities. Of course, such a policy cannot displace the Commission's consideration of the range of statutory factors to which it must have regard."

[36] The Full Bench found that on Parks Victoria's own case a workplace determination which provided for wage increases totalling 12.875% would be consistent with the government's wages policy (at [212]). After taking into account matters including "wages outcomes for public sector employees generally" and that "the wages outcome is broadly consistent with the Victorian Government's wages policy" (at [248]), the Full Bench awarded pay increases of 13.5%.

[37] Both ASMOF and AMA led evidence from medical practitioners employed in CHS. The medical practitioner witnesses provided evidence of:

• (a) their work/career history;

• (b) the work that they do;

• (c) how their work area is organised;

• (d) relevant changes in recent years;

• (e) pressures they face in their work in terms of the sheer volume of work; and

• (f) difficulties arising from shortages in medical practitioners.

[38] For reasons of confidentiality, we have not recorded in this decision the details of the evidence received. It is sufficient to observe our acceptance of the general tenor of this evidence that the affected medical practitioners are performing their work under what can often be quite difficult circumstances, including because of limited resources.

[39] Witness MP-1 is a Senior Staff Specialist at The Canberra Hospital and North Canberra Hospital.

[40] Witness MP-1 said that in August 2024 a new emergency department opened with a significantly larger footprint than the previous department. Witness MP-1 said there are currently 128 treatment spaces/beds which is anticipated to increase to 152 in the coming year. Witness MP-1 said that the previous emergency department had 90 spaces and there has not been an equivalent increase in medical staffing.

[41] Witness MP-1 said that usually roster requests go in two months in advance, and the roster is released four to five weeks in advance. Notice for additional work is released as overtime with the roster, when it is known, or on a weekly or daily basis. However, at Canberra Hospital, "we are barely managing consultant numbers and registrar numbers are very short."

[42] Witness MP-1 stated that there is often a request to work on the floor during clinical support time, depending on how busy the department is or if there is significant staff shortage due to sickness. Usually a request is made for one additional staff specialist to cover a shift. The most recent request was on 26 January 2025 to work extra shifts on 30 and 31 January. This was paid as overtime and with penalty rates.

[43] Witness MP-1 said:

"We are required to perform additional work when there are not enough doctors on the floor or the roster has collapsed due to sick leave, especially at the consultant or registrar level...

There is insufficient medical staffing at the senior or junior level. We have an abundance of year 1 and year 2 doctors, and after this, there is scarcity.

The intense workload, and the remuneration not being at par with other locations, is one of the reasons that people leave..."

[44] In relation to ongoing vacancies Witness MP-1 said:

"Most impacts of the ongoing vacancies are on the staff that are working in the department who must work extra hard due to the additional pressure. This includes picking up extra evening, weekend and public holiday shifts as demands on the floor are too high.

Locums are used often in Emergency; however, it is very difficult to retain locums due to the nature of locum work, locum rates of pay, workload and various factors. There are two locums currently on the roster on night shifts. Most locums work a block of shifts in Emergency.

Throughout my time working in Emergency at Canberra Hospital, doctors of all levels have expressed to me that they feel exhausted and that they struggle to maintain a work-life balance because the nature of our work is so consuming and because we regularly need to use a significant portion of our time outside of work to recover from our shifts."

[45] Witness MP-2 is a Resident Medical Officer at The Canberra Hospital. At the beginning of 2022, Witness MP-2 was employed by the Territory as an intern.

[46] At the time of making their statement Witness MP-2 was working in the Acute Medical Unit (AMU) at Canberra Hospital, which they described as an intense environment to work in and in which the workload is relentless.

[47] Witness MP-2 said that the AMU is supposed to have a maximum of 24 patients at any one time, however, it is often above this number, which is problematic as the resources are only able to cover 24 patients.

[48] Witness MP-2 said:

"During the time that I have worked in AMU, I have only worked on a shift where there have been five RMOs once. However, I have often worked shifts where only two RMOs were rostered, which significantly increases the workload for everyone.

... Because there are generally more morning RMOs, if one of the evening RMOs calls in sick they tend to pull one of the morning RMOs to work a double or change to the evening shift.

There is no wiggle room in the AMU roster, and based on my experience, we are running off the smell of an oily rag. If someone is sick or injured, or needs to take leave to care for a sick child, there is no one to cover them and we usually just have to cover the work with the resources that we have, or someone has to work additional hours.

On average I would estimate that I work 30 minutes to two hours of overtime each week, depending on the workload in any given week. I do my best to record and claim my overtime, though I often don't have the energy to do it."

[49] In relation to using locums Witness MP-2 said:

"CHS frequently relies on locum doctors to fill staffing gaps...

Locums are paid at a much higher hourly rate than CHS employees at the equivalent level...

[Visiting Medical Officers] are also often in the AMU."

[50] Witness MP-2's primary concern regarding the working conditions is patient safety however "there are just not enough of us to provide the level of care that people need ... I am concerned that the demands on the health care system in Australia are greater than they have ever been and will continue to increase with the tsunami effect of the ageing population."

[51] Witness MP-3 was employed by the Territory as an Intensive Care Unit (ICU) Registrar within the CHS until December 2024.

[52] Witness MP-3 has worked in other jurisdictions and gave evidence about their work at Calvary Hospital (now North Canberra Hospital) in 2020-2022. Witness MP-3 said that they found the working conditions at Calvary very difficult and at one stage put their training on hold because "I felt burnt out and needed time away from clinical medicine". They said:

"The main difficulty I had working at Calvary was that it was very short-staffed, and I was expected to provide care to patients across multiple teams. During the term that I worked there, there were multiple days on which I had to carry multiple pagers and respond to those calls because other doctors were sick or otherwise unavailable. On one particular day, I was carrying four pagers. I recall that I called my [spouse] in tears during my shift because I was so stressed and overwhelmed at the prospect of undertaking the workload and responsibilities of four doctors: an intern, two General Medicine registrars and an Infectious Diseases registrar.

I recall that throughout the term there were not enough staff to cover multiple instances of expected and unexpected leave, and registrars, RMOs, and interns would need to cover for one another, across different teams. Normally, junior doctors would only work within their team, looking after patients admitted under that team's set of specialists, and reporting only to those specific specialists."

[53] After resigning in 2022, Witness MP-3 returned to medicine in the ICU at Canberra Hospital in 2024. Witness MP-3 said that in 2024 staffing shortages were acknowledged and well known. The roster was colour-coded such that it was easy to see unplanned leave and shifts during which there were fewer than the usual/expected number of doctors. Witness MP-3 chose not to work additional hours or shifts but explained that if a doctor works an extra shift, the rate of pay they receive for that work is based on how many hours they already have rostered in their fortnight and the day of the week that shift is worked on.

[54] Witness MP-3 said that they were required to take on additional work/responsibility during shifts when the unit was short staffed, and that they often went home feeling exceedingly tired, anxious, stressed and irritable. Witness MP-3 is contemplating a return to working at The Canberra Hospital but their decision is "heavily dependent on whether current working conditions improve at CHS."

[55] Witness MP-4 has worked for CHS for 19 years. Witness MP-4 was employed as an ICU Registrar within CHS until the end of 2024 and now works as a Co-Director of a Department for 30 hours per week plus on-call.

[56] Witness MP-4 said that in their current department "staff retention has greatly improved since we have implemented specific measures to improve work life integration. This has included preventing [medical] staff from being directly asked to work late or work extra shifts."

[57] Witness MP-4 is often asked to perform extra shifts or overtime. They said that there is a lot of pressure from CHS to cover these shifts but that "as I am the Co-Director, I have a greater ability to decline these shifts and always allow other [doctors] to do so as well."

[58] Witness MP-4 said the shortage in staff has been ongoing for as long as they can remember. They said that due to budget restrictions:

"... we are not always allowed to recruit and employ more staff. There is currently a direction from the Chief Operating Officer to not increase FTE across the Territory, however, we will either need to increase our FTE or cancel elective surgeries

The failure of CHS to fill these vacancies has caused mounting stress for myself and other doctors in [the team]."

[59] Witness MP-4 left their role at The Canberra Hospital because of the burnout and fatigue they were experiencing, and the constant pressure to pick up extra shifts. Witness MP-4 said that CHS is widely known throughout the Australian medical profession to have a "horrible" workplace culture where medical staff feel undervalued and frequently work excessive hours.

[60] For Witness MP-4 the on-call requirement as TCH1 (first on-call for emergencies) was six on-calls in six months. In Witness MP-4's experience, 50% of on-call shifts at North Canberra Hospital required attendance at the hospital, and previously 90% of on-call shifts at The Canberra Hospital required attendance.

[61] Steven Ross is employed as the Executive and Industrial Officer of ASMOF in respect of the ACT Branch. Mr Ross has held this position since 2018 and has worked in industrial relations for approximately 35 years.

[62] Since 2022, Mr Ross has had carriage of the negotiations for the next iteration of the MPEA on behalf of ASMOF. He said that between 22 March 2022 and 8 March 2023, a total of approximately 40 bargaining meetings were held focusing on the common conditions across the ACTPS. Mr Ross also said:

"Since negotiations commenced for a replacement to the MPEA 2021 until the commencement of these proceedings, there have been in total almost 30 meetings of the parties for the purpose of negotiating the Core components of the proposed replacement Agreement and approximately 30 further meetings of the parties for the purpose of negotiating the Medical Practitioner-specific components."

[63] In November 2022 the Territory proposed an all of Government pay offer that consisted of a combination of flat dollar increases and percentage increases over the term of a four-year agreement. ASMOF rejected this offer on 22 December 2022, asking that CHS "calculate the figure for a universally applied percentage increase within the financial parameters of the existing spend on wage increases". The Territory "rejected" ASMOF's request. Mr Ross said:

"In my experience, the ACT Government's approach to the wages offered to Medical Practitioners broke faith with the long standing 'whole-of-government' approach advanced by the ACT Government through the various iterations of the MPEA ... This is because the net effect of the offer is to provide different outcomes for different occupational groupings rather than the same outcome for all of the ACT Public Sector."

[64] In March 2023 and April 2023 the Territory revised its offers. The April 2023 offer was ultimately accepted by each other union. However the revised offers, Mr Ross said, did not address the concerns of ASMOF's members that had been raised during bargaining meetings.

[65] Negotiations continued throughout 2023 with meetings held at least monthly, including two all day meetings in November 2023. However, the parties remained unable to reach agreement on key matters including wages.

[66] Mr Ross said that since the beginning of bargaining for a new agreement began in 2021, ASMOF's claim has been that there should be no decrease in real wages for Medical Practitioners over the life of the agreement and that wage rates should not become a disincentive to employment in the ACT.

[67] On 12 December 2023, ASMOF sent a bulletin to members with a comprehensive report on the Medical Practitioner-specific bargaining proposals and a link to a survey which asked members whether they would accept the Wages Offer or wished for ASMOF to continue to seek improvements. The survey results showed that ASMOF members wanted ASMOF to continue negotiations to pursue an outcome consistent with the ASMOF's May 2022 Wages Claim.

[68] In mid-2024 the Territory put an agreement to a vote. Mr Ross said that 58% of eligible Medical Practitioners voted and 86% of those employees who cast a valid vote, voted against the proposed agreement, which Mr Ross regarded as an emphatic rejection of the Territory's offer.

[69] In July 2024 ASMOF proposed several measures by which the Territory could increase the remuneration package of Medical Practitioners to bridge the gap required to ensure no decrease in real wages without substantially moving away from its 'all of government' wage offer. Mr Ross said that ASMOF's proposals were all rejected by the Territory.

[70] Mr Ross observed that many ASMOF members have felt aggrieved by the Territory's various wages offers in light of the added burdens imposed on them during the COVID crisis, in supporting the adoption of the Digital Health Record system and with the increased demands on public health services in the ACT.

[71] Mr Ross compared wages in the ACT with other states. ACT wages were less than many jurisdictions but significantly higher than NSW. Mr Ross concluded that "while ACT Medical Practitioner relativities are comparative to several competing jurisdictions, compared with others, however, some classifications are significantly undervalued."

[72] Mr Ross said that the Territory's response to the impact of the cross-jurisdictional Medical Practitioner labour market has been to introduce confidential packages for individual or small groups of practitioners in particular specialties through the mechanism of Attraction and Retention Incentives (ARIns).

[73] Mr Ross's view is that the Territory's wages offer, if implemented, will "exacerbate" the recruitment and retention "difficulties" that CHS is already experiencing within its Medical Practitioner workforce.

[74] Mr Ross suggested in his witness statement that the productivity of Medical Practitioners employed by CHS has increased substantially over the period since the commencement of the negotiations for a replacement agreement to the MPEA 2017. The number of employees covered by successive agreements has increased slightly (1116 in 2017, 1062 in 2021 and 1345 employees in 2024). Mr Ross listed "areas indicative of, that have required, or that are leading to increased productivity", including the measures introduced to deal with COVID-19, the introduction of the Digital Health Record system, the acquisition by the ACT Government of Calvary and the 10% to 30% increase in patients in the public hospital system.

[75] In response to the Territory's reliance on 'onerous hours' allowance provisions for senior medical practitioners Mr Ross observed that very few employees receive this allowance:

"The allowance is triggered where more than 90 hours are worked in a fortnight. In that circumstance, if more than 100 hours are worked in the subsequent fortnight an allowance of 5% on base salary is paid. If more than 120 hours are worked in that fortnight then the allowance is increased to 10%. The net effect of this clause is that a full time [Senior Medical Practitioners] is required to work at least an additional 30 hours (above their contracted 40 hours per week) in a four week period before they become eligible for the very modest allowance."

[76] Similarly, Mr Ross indicated in response to the Territory's reliance on the introduction of a 25% shift penalty for Senior Medical Practitioners working night shift, that the omission of the penalty was recognised during bargaining to be an anomaly that was quickly rectified.

[77] Mr Ross also opined that private practice arrangements are undoubtedly of benefit to Senior Medical Practitioners who are eligible to receive payment under those arrangements and that, the financing of such arrangements also provides a source of income or benefit to CHS.

[78] Witness MP-5 gave evidence on behalf of the AMA. Witness MP-5 is a registrar at The Canberra Hospital and has lived in Canberra all their life. Witness MP-5 said that registrars are the workhorse of the hospital. Witness MP-5 gave evidence about increases in household expenditure since 2022, including increases in childcare expenses, mortgage repayments, AHPRA registration and HECS debts.

[79] Witness MP-5 said that The Canberra Hospital's struggles to attract doctors made work more difficult.

[80] Witness MP-6 is an intern at The Canberra Hospital who started an internship at the beginning of 2024. They said "I chose to be a doctor because it's a great job and I have always wanted to be one". Choosing to be an intern at The Canberra Hospital was the obvious choice for Witness MP-6 "since Canberra is my home".

[81] Witness MP-6 has sacrificed a lot of personal and family time for their medical education, their patients and their job. Witness MP-6 thinks "there needs to be fair compensation for these sacrifices". Witness MP-6's salary as an intern is comparable to the starting salary of a public sector teacher in the ACT.

[82] Peter Somerville is the Chief Executive Officer of the AMA. Mr Somerville has had oversight of bargaining for the proposed agreement since early 2022. He said that bargaining took place in two streams - a 'core' stream, dealing with ACTPS-wide issues, and a stream dealing specifically with issues relevant to medical practitioners.

[83] The core stream was conducted by holding separate meetings for union and non-union bargaining representatives. Mr Somerville thinks that the AMA's first offer was fair and reasonable. He said that the Territory did not provide any substantive reasons why this was not so, and said that "I was not during bargaining, and have not been since, convinced to adopt an alternate position."

[84] Mr Somerville said that the ongoing difficulty in attracting and retaining specialised medical staff is a problem acknowledged by the Territory in the CHS Annual Report 2018-19 and one that has not yet been overcome.

[85] Gregory Schmidt is a Senior Workplace Relations Adviser for the AMA. He was involved in bargaining for an agreement to replace the 2022 Agreement. From July 2022 he was the primary bargaining representative on behalf of bargaining employees who were AMA members. He attended all bargaining meetings and was responsible for advancing the claims of the AMA, and either supporting or contesting claims made by the other representatives. When Mr Schmidt joined the AMA in July 2022 it had just put its first proposal to the Territory by way of a log of claims. In that proposal the AMA sought wage increases of the ACT Consumer Price Index (CPI) plus 1%.

[86] This proposal was not accepted by the Territory. The Territory put its first offer in November 2022, which the AMA in turn rejected. During the period from early 2022 until June 2024, the AMA attended more than 50 bargaining meetings with the Territory and other bargaining representatives. Many matters were raised and settled through those negotiations, although pay increases, allowances and a small number of other issues remained in dispute.

[87] On 3 March 2023 the Territory made a second wage offer for a three-year agreement. The AMA did not accept the second wage offer because, Mr Schmidt said, it did not provide salary increases that were close to the rate of cost-of-living increases. The Territory made some non-wage amendments to the second wage offer on 11 April 2023 but continued the hybrid structure of increases.

[88] Mr Schmidt said that preserving real earnings remains a key priority for the AMA. He provided calculations by reference to the December quarter All Groups CPI Canberra figures from the ABS. Mr Schmidt's calculations suggested that wages under enterprise agreements have increased 14.4% since the end of 2018, compared to an increase in CPI by 24.48% over the same period.

[89] Mr Schmidt said the AMA's position would prevent ongoing erosion of real wages for employees and enable employees to catch up the real wage losses arising from the 2021 Agreement.

[90] Mr Schmidt gave evidence about workforce sustainability, citing data from the Steering Committee for the Review of Government Services Provisions Report on Government Services 2024 that suggested that a desirable workforce age profile to maintain workforce sustainability is one displaying high or increasing proportions of the workforce that are new entrants and/or low or decreasing proportions of the workforce that are close to retirement, and that compared with major cities in other Australian jurisdictions in 2022, the ACT's medical practitioner workforce had the lowest proportion aged under 30 years, the highest proportion aged 40-49, and the second highest proportion aged 50-59 years.

[91] Witness MP-7 is a doctor in training and has been employed as a Doctor in Canberra for four years since 2021. Witness MP-7 was born, raised, and educated in Canberra, but left to study their undergraduate medicine interstate. Witness MP-7 chose to return to Canberra to be near their family as a young junior doctor and have extra community support during their first couple years of work.

[92] Witness MP-7 become involved in the 2023 - 2026 Enterprise Bargaining to help focus on specific industrial issues affecting the employment of Medical Officers.

[93] Witness MP-7 said "it seems that the hospital is simply having to make do with less, and it certainly shows", that "the system is continuously under stress" and that:

"While not the whole solution, appropriate remuneration incentives for Medical Officers to relocate to Canberra and stay, reduces the financial burden of having to move/relocate here, and thus encourages them to invest in fixing management systems in the sector.

Appropriate remuneration isn't going to solve each individual issue listed above that contributes to Canberra's inability to attract and retain doctors, however it does a substantial job of breaking down barriers and deterrents that may otherwise push people away."

[94] Witness MP-7's evidence on the limitations around training opportunities in the ACT echoed Ms Zagari's evidence (see [117] below).

[95] Ms Alexandra Allars gave evidence on behalf of the Territory. Ms Allars is the Executive Branch Manager - Whole of Government Industrial Relations and Public Sector Employment within the OIRWS.

[96] Ms Allars gave evidence about the structure of the ACTPS and how it operates a single service under a 'One Service' approach. The ACTPS workforce has grown from 26,141 in 2020-2021 (23,044 FTE) to 30,743 in 2023-24 (27,175 FTE). CHS is the biggest Directorate within the Territory's workforce, employing 35% of all ACTPS employees.

[97] Ms Allars said that OIRWS' role is to lead the industrial and employment program of the ACTPS and has authority to develop and implement whole of government policies and provide support to directorates and agencies working through complex industrial and employment policy matters.

[98] Ms Allars identified the employment conditions generally covered by the 'common core' conditions across the Territory's workforce. OIRWS is responsible for bargaining on behalf of the Territory in relation to the common core provisions. Ms Allars said that in practice, the Community and Public Sector Union (CPSU) is generally the lead union participating in common core bargaining for employees. Employees are also entitled to nominate their own bargaining representative, but individual bargaining representatives rarely actively participate in the common core negotiations. Ms Allars recalled that Mr Ross sometimes attended bargaining meetings regarding common core conditions on behalf of ASMOF.

[99] Ms Allars described the Territory's approach to bargaining as follows:

"The Territory did not come to the common core bargaining with a prepared proposal. Unlike the Commonwealth and some State and Territory governments, the Territory does not have a wages policy. However, the fact that OIRWS conducts the common core bargaining centrally ensures a consistent approach can be taken across the ACTPS. The core serves to ensure that all staff across the service have access to the same set of employment conditions and entitlements, no matter their job role or work type. It also enables the Territory to be more responsive to the claims that are actually brought by employees.

The first weeks and months of bargaining meetings were spent receiving and going through each union's log of claims, so far as they related to the common core. Once we had that information, we were able to consolidate the claims and consider each of them, and how they might impact the other core provisions. It was only after considering those claims and the reasonableness and cost of any enhancements claimed, that the Territory was able to formulate a wage offer.

I was aware that ASMOF continued to oppose the final wage offer that had been put by the Territory. However, there was enough agreement with the other unions that the Territory was prepared to move forward with a vote on the ACTPS EAs on the basis of the final wage offer, once the Directorate-specific bargaining was complete."

[100] In relation to the Territory's hybrid offer Ms Allars said:

"The decision was taken to structure the pay increases in the Territory's wage offer using a 'hybrid' model of flat dollar-amount increases and percentage increases. Previous ACTPS EAs had used percentage pay increases.

The reasoning for the inclusion of some flat dollar-amount pay increases was to address cost of living pressures that were being highlighted by unions, by ensuring that the ACTPS' lower-paid workers received a more substantial benefit than if they received only a small percentage increase on a relatively small wage.

The wage offer was also made in the context of the 'Fair Go for GSO' campaign run by the CFMMEU, UWU and TWU, which advocated for the Territory to focus on better pay and conditions for some of the ACTPS' lowest-paid classifications, including general service officers, cleaning service officers, building service officers, building trade group (including building trades assistant), apprentices in the building trade group, stores supervisors, facilities service officers and sportsground rangers.

This campaign was later supplemented by the CPSU's Fair Go for Women campaign, focusing on the introduction of a minimum public sector wage. Those campaigns emphasised the value to the Canberra community of the work undertaken by those in the lowest ACTPS pay classifications."

[101] Ms Allars explained that directorates can pay employees more than the base pay rate for their classification by using an ARIn under the framework in every ACTPS enterprise agreement, or by making an additional payment under s.245 of the Public Sector Management Act 1994 (ACT). Ms Allars said this enables the Territory to offer a competitive package for skills in high demand that are essential to service delivery, such as technical and medical specialists. As at 30 June 2024, 377 employees across the ACTPS were receiving an ARIn or s.245 payment. Of these 377 employees, 89% were employed by CHS.

[102] Under cross-examination Ms Allars accepted that different types of ARIns might apply, that some have a time limitation and some are renewable. The AMA's cross-examination of Ms Allars included the following exchange regarding the negotiation of wage increases within the common core conditions:

"Q: So is it just that it makes it, for the purpose of negotiation, the quickness of negotiation, more efficient to put the one offer, is that what you're really saying?

A: No. When it comes to the offer, I, sort of, reflected around how we arrive at our offer, and the parameters for this round of bargaining were in a constrained environment where there were high costs of living pressures on our lowest paid employees. We wanted to ensure - and we presented a hybrid approach to pay offered, which was different to what we'd done historically - we wanted to ensure that our lowest paid workers have the maximum impact of that pay increase when they were experiencing high costs of living pressures. So it wasn't about administrative ease, or efficiency. It was actually our underpinning principle to give our lowest paid workers the maximum pay increase available."

[103] Mr Steven Linton is the Senior Director - Industrial Relations within the People and Culture Branch of CHS.

[104] Mr Linton has worked in the Industrial Relations team of CHS for approximately 16 years and has been involved in negotiations for each version of the four agreements in which CHS is the lead agency: the MPEA, the ACTPS Nursing and Midwifery Enterprise Agreement, the ACTPS Health Professionals Enterprise Agreement and the ACTPS Support Services Enterprise Agreement.

[105] Annexure A of the MPEA sets out the base salaries for medical practitioners at each classification and also provides for a number of other financial benefits that doctors may regularly receive, most significantly: ARIns, overtime/additional hours, on-call/recall payments, professional development and additional superannuation contributions.

[106] Mr Linton said that the median medical practitioner's salary in CHS is the salary for a Registrar 4 ($141,084). Using this classification to convert the Territory's proposed flat dollar increase to percentages, Mr Linton provided calculations that indicated that since September 2018 the annual wage growth for the Registrar 4 classification would be 18.6% compared to annual public sector growth over the same period of 18.1%.

[107] Mr Linton explained that ARIns do not change as base salaries increase and are generally for a fixed dollar amount for an agreed period.

[108] He said that the various extra benefits available under the 2022 Agreement mean that the regular remuneration of senior medical practitioners may be considerably higher than their base salary. Mr Linton said that the total annual remuneration for some senior specialists is in excess of $500,000.

[109] After the common core conditions were resolved for all other ACT bargaining groups, CHS proposed some additional enhancements to be included in the MPEA. Mr Linton described those enhancements:

"In relation to the MPEA-specific financial improvements on the Current MPEA, the proposed MPEA provides:

(a) A trial of new systems for recording and remunerating on-call and recall arrangements for senior medical practitioners (Specialist level and above) (clauses 43.7 to 43.19 of the proposed MPEA and draft determination). The proposed trials aim to more accurately link remuneration to the amount of on call work actually undertaken. For some practitioners who undertake significant on-call work, it is envisaged that these arrangements will result in greater remuneration for the same work that they are currently doing, even without a pay increase.

• (i) For example, a Specialist 3 on $210,146 would get $36,565 per annum under the current 17.4% provision. Under the trial, assuming they were on-call one day in 4, with an average on-call period of 20 hours and 1 minimum (2 hour) recall per day, they would receive $42,297 in on-call and callback payments even after allowing for 4 weeks leave. On the other hand, if the practitioner would receive more under the existing arrangements, then they will continue to be paid under those arrangements (see clause 43.13).

(b) The introduction of shift penalty rates (25%) for senior medical practitioners for hours worked between midnight and 8am, from midnight Sunday to midnight Friday (clause 35.4.2) of the proposed MPEA / draft determination).

(c) Payment of the MEE allowance to all staff on a fortnightly basis without the need to provide medical education expenses have been incurred by the employee (discussed in more detail below)."

[110] In response to comparisons between salaries in the ACT and in other jurisdictions, Mr Linton made the following points:

• (a) many of the comparisons made by ASMOF or the AMA compare the ACT salaries in 2022, which do not take into account the Territory's wage offer;
• (b) each jurisdiction has its own structure for remuneration of medical practitioners such that it can be difficult to find an entirely suitable comparator. For example, some jurisdictions build elements into the base pay rate that are paid as separate allowances in other jurisdictions. Some jurisdictions provide different remuneration components for different specialties;
• (c) the use of comparative base pay rates becomes particularly problematic at the specialist/consultant level, where base pay can form half or less of a practitioner's regular remuneration; and
• (d) the MPEA provides for standard base pay rates across each classification, regardless of speciality. Where a certain speciality may attract the higher remuneration in other jurisdictions, the Territory addresses such situations through use of ARIns.

[111] Mr Linton said that CHS regularly reviews comparative remuneration for senior practitioners as part of its review of ARIns. The most recent review was in mid-2024. As part of the review process each senior medical practitioner who receives an ARIn received a comparative table for their specialty and classification. The following example comparison table provided by Mercer to CHS illustrates the difficulties Mr Linton described above:

[112] Mr Linton's evidence in cross-examination including the following:

• (a) during bargaining the Territory costed ASMOF's proposal but did not cost AMA's proposal because it was not fundamentally dissimilar to ASMOF's proposal;

• (b) it was not ever put during the negotiation that the ACT does not have the capacity to fund either the ASMOF or the AMA proposal

• (c) CHS did not seek an exemption from the Territory that would allow it to negotiate differently with the doctors in respect of their enterprise agreement; and

• (d) CHS certainly gave consideration to such options, but no exemption was sought. The decision was taken that CHS was satisfied with the government's pay offer.

[113] Janet Zagari is the Deputy Chief Executive Officer of CHS.

[114] Ms Zagari said that almost all workers in the facilities and services operated by CHS are engaged by the Territory, including administrative and support staff, nursing staff, allied health professionals, medical technicians and doctors. The Territory also engages Visiting Medical Officers (VMOs) although not as employees.

[115] Ms Zagari provided statistics that indicate that the CHS workforce has consistently grown since January 2021, including the following table:

[116] In response to the evidence filed by ASMOF and the AMA, Ms Zagari provided the following evidence regarding attraction and retention of staff:

• (a) most junior medical practitioners in the public sector workforce are interns in their first year out of university;

• (b) in 2024 the Territory was the only jurisdiction in Australia that fully recruited/filled all of its intern positions at the beginning of the clinical year;

• (c) in 2025 CHS is again recruited to required levels;

• (d) there are several factors outside of the Territory's control that feed into the ability to attract or retain staff in the ACT;

• (e) the ACT is a relatively small population centre and as such doctors are less likely to encounter more complex or specialised cases;

• (f) For most specialty training programmes, CHS trainees are required to travel away from home to do a portion of their training interstate to train in a particular subspecialty;

• (g) the larger metropolitan centres have more specialist training programme places available;

• (h) junior doctors may have a greater chance, or perceive that they have a greater chance, of obtaining a training program place in one of those larger metropolitan centres to work as a resident or junior registrar at the hospital rather than applying from the Territory; and

• (i) there is no publicly accessible data to enable meaningful comparison of staff retention rates between the jurisdictions.

[117] Ms Zagari's evidence under cross-examination including the following:

• (a) junior doctors generally are under the supervision of a senior medical practitioner;

• (b) if a senior medical practitioner is not available for any reason, such that there is not appropriate training supervision for junior doctors, it will eventually become slower for junior doctors to become senior medical practitioners;

• (c) staff shortages can also risk a hospital's accreditation to deliver training;

• (d) The Canberra Hospital has lost accreditation as a training college for obstetrics and gynaecology at times;

• (e) at The Canberra Hospital there are currently less than 10 FTE unfilled senior staff or staff specialists/senior staff specialists positions, as well as 3.6 FTE unfilled positions in psychiatry;

• (f) VMOs and locums are generally engaged for a fixed period to supplement employees;

• (g) some VMOs in the Territory are very long-serving, including some who have been with CHS or, prior to CHS, ACT Health, for decades;

• (h) there is currently a recruitment pause on non-essential, non-frontline staff in the ACT;

• (i) in recent years there has been a significant increase in the demand for CHS services;

• (j) in order to maintain those services, CHS is more heavily reliant upon VMO, locum and agency staff;

• (k) between 2022 and 2023 CHS' activity grew 12.3 per cent and was on track to grow a further 9.3 per cent over 2024 and into 2025;

• (l) it is not that CHS' bed base has grown by these amounts. The physical infrastructure remains the same. More patients come into emergency departments and are being admitted, but their length of stay is decreasing;

• (m) in January 2025 CHS announced its intention to phase out fee for service contracts for VMOs to reduce the costs associated with VMOs;

• (n) it is possible that some VMOs will choose not to stay with CHS. If so, CHS will need to recruit to fill vacancies, whether through VMO or direct appointments; and

• (o) VMO agreements are underpinned by available budget vacancies.

[118] Geoffery Hodder is a Senior Director within the Finance and Budget Group in the Treasury 'stream' of the Chief Minister, Treasury and Economic Development Directorate. Mr Hodder currently leads the Treasury's health policy team.

[119] Mr Hodder provided a high-level estimate of the additional costs of ASMOF's, the AMA's and the Territory's proposals using workforce snapshot data as at March 2024. Mr Hodder provided the following table showing the cost of the pay increases from each proposal for each relevant year, as compared to wages staying at the current (June 2022) rates:

[120] In cross-examination Mr Hodder said that the calculations above included on-costs such as additional workers compensation premiums and long service leave accumulations.

[121] The ACT Branch of ASMOF represents medical practitioners employed by the Territory who work in CHS, including those who perform work at Canberra Hospital and North Canberra Hospital, and other CHS health facilities.

[122] In support of its claim for wage increases totalling 18% across 3 years, ASMOF submitted the following:

• (a) the 2022 Agreement was only a "fast tracked interim Agreement for a period of 12 months in recognition of the added burdens imposed on the ACTPS workforce as a consequence of the COVID pandemic";

• (b) the 2022 Agreement provided for two 1.35% pay increases;

• (c) the concept of wage fixation has always been fundamentally concerned with, at the very least, maintenance of real wages to ensure preservation of one's standard of living (referring to the Basic Wage and Standard Hours Enquiry 1952-1953 [1953] CthArbRp 473; (1953) 77 CAR 477, National Wage Case 1975, the Accord in 1983, the full National Wage Case 1983 (1983) 4 IR 429 at 432 and s.577 of the Act);

• (d) the Commission's consideration is not only confined to wage maintenance. Indeed, wage growth may be awarded without the need to 'be supported by increases in work value or other relevant considerations' (citing Parks Victoria at [181]-[182]);

• (e) most workers, including medical practitioners, have experienced a steep decline in real wages whether they are covered by awards, collective or individual agreements, and irrespective of their position in the wage distribution. The constellation of high inflation, low unemployment and falling real wages is unprecedented in contemporary Australian economic history (citing Annual Wage Review 2023-24 [2024] FWCFB 3500 at [143]);

• (f) ASMOF's ask is not dissimilar to increases handed down by the Commission in the more recent economic climate (citing Cleanaway Erskine Park at [226]-[237]);

• (g) medical practitioners in the ACT are said to be the second-lowest paid cohort compared to other jurisdictions in Australia;

• (h) the fact that other CHS employees (who perform completely different roles subject to separate industrial instruments) accepted the Territory's pay offer does not assist the Commission in determining the merits of this case having regard to the factors under s.275. Unlike medical practitioners, other public sector employees did not flex their industrial muscle as much as they should have; and

• (i) the Territory's variable pay/flat dollar increases will compress wage relativities and reduce the incentive for skill acquisitions (referring to Annual Wage Review 2021-22 [2022] FWCFB 3500 at [184]).

[123] To support its claim for what it says will maintain real wages for medical practitioners ASMOF submitted:

• (a) CPI is an important factor in setting wages, albeit not solely determinative. The level of remuneration and conditions of employment of the same class of workers in the same industry, as well as wage rates in comparable instruments are also important factors (citing Health Services Union v Austin Health [2009] AIRCFB 353 at [43], (2009) 180 IR 41 at 55 (Austin Health));

• (b) real wages have eroded by 15.9% since the last increase awarded to medical practitioners on 1 June 2022;

• (c) the Australian Bureau of Statistics' published Living Cost Indexes (LCI), particularly the LCI for employees, is a better measure of the purchasing power of employees than the CPI (citing Annual Wage Review 2023-24 [2024] FWCFB 3500 at [155]). The LCI for employees takes into account changes in mortgage rates. Interest rates have increased significantly since June 2022, as have interest rates charged in the Higher Education Loan Program; and

• (d) medical practitioners' real wages and purchasing power has significantly diminished "meanwhile, those with mortgages and/or student debt have simultaneously been subjected to a substantial increase in their living costs with no sign of any substantive reduction in sight. CHS's wage offer does not meaningfully redress these issues".

[124] ASMOF asserted labour productivity gains across CHS, arguing that:

• (a) CHS has been significantly under resourced for an extended period;

• (b) in January 2025 the ACT Government announced a $227.3m cash injection because of significant increased pressure on the health system;

• (c) existing staff have been required to stretch to reach ever-increasing demand;

• (d) the pressure to meet growing demands has been acutely felt by medical practitioners who have been required to perform more work with less resources;

• (e) in the AMU, this resourcing issue has significantly increased everyone's workload. For example because of the overlapping shift pattern, employees are not supposed to work a lot of overtime, but often do as it is easier to stay beyond the end of a shift and see a particular case through than to try and hand it over (evidence of Witness MP-2 - see [45]-[50] above);

• (f) in the ICU at North Canberra Hospital short staffing has created immense additional pressures on doctors. Due to expected or unexpected leave registrars, RMOs, and interns need to cover for one another across different teams in which they do not have experience. Even when there are enough doctors, there are very few times where the roster is full enough to cover unplanned leave (evidence of Witness MP-3 - see [51]-[54] above);

• (g) at North Canberra Hospital anaesthetists are regularly called up to work late. There is increased pressure to achieve elective surgery targets however approximately 25% of surgery lists run late each week. As a result there is a high number of vacancies and an increasingly demanding workload (evidence of Witness MP-4 - see [55]-[60] above); and

• (h) at The Canberra Hospital and the North Canberra Hospital a new emergency department was opened in 2024, increasing the number of available beds from 90 to 128. ED staffing levels did not increase, causing insufficient staffing at senior and junior level. Specialists are regularly required to work on the floor during clinical support time (evidence of Witness MP-1 - see [39]-[44] above).

[125] ASMOF said the enhanced conditions and financial benefits that the Territory relies on have existed in almost identical terms within previous enterprise agreement iterations for a considerable period. The proposed new entitlement to a 25% shift penalty rate for senior medical practitioners between midnight and 8.00am under clause 35.4.2 of the draft Determination is limited in that it appears to only be available to those working in the ED and ICU because these are the only areas where shifts would be worked that trigger the allowance. Only 25% of medical practitioners receive ARIns.

[126] In relation to the merits of the case (per s.275(a)), ASMOF submitted:

• (a) its case has significant merit from both a real wages and productivity standpoint; and

• (b) its wage claim is modest considering the "long-standing erosion of real wages ... and the unrelenting demands placed on [medical practitioners across the ACT]".

[127] In relation to the interests of employers and employees (s.275(c)), ASMOF submitted that:

• (a) the interests of the Territory includes the ability to meet the needs of its patients, the ability to adapt to increased demand, to have a larger pool of direct employees and attract more entrants to the current workforce;

• (b) increased wages will assist in alleviating significant retention issues;

• (c) if retention is improved the Territory could engage less locums (who are significantly more expensive than employees); and

• (d) granting the pay increases by arbitration will assist the Territory to meet its commitment to achieving an environment where employees feel valued for the contribution they make to achieving organisational goals, as well as the Territory's commitment to achieving and maintaining the highest level of health and safety for all employees.

[128] In relation to the public interest (s.275(d)) ASMOF submitted:

• (a) consideration of the public interest imports a discretionary value judgement confined only by the subject matter, scope and purpose of the Act. Public interest considerations can overlap with the interests of the parties;

• (b) in this case, matters relevant to the public interest include job security, increasing opportunities for permanent employment for all members of the community, appropriate and timely management of patients, and the competitiveness of the Territory in the industry;

• (c) there is a significant public interest in paying medical practitioners sufficiently such that the Territory does not suffer from further retention issues that cause delays and significant health and safety risks to patients; and

• (d) it is in the public interest that employees' wages maintain their real value over time.

[129] ASMOF also submitted that the Territory has significantly benefited from labour productivity gains through its workforce as described above (s.275(e)), its bargaining representatives have bargained in good faith (s.275(f)) and a workplace determination made in the terms sought by ASMOF will not disincentivise bargaining at any later time (s.275(h)) because "the wage increases will see medical practitioners recoup some of the real value of their wages with plenty left in the tank for future bargaining."

[130] In response to the Territory's submissions (see [140]-[150] below) ASMOF said:

• (a) the fact that other CHS employees who perform completely different roles and are covered by separate industrial instruments accepted the ACT Government's pay offer does not assist the Commission in determining the merits of this case having regard to the factors under s.275;

• (b) the Territory's position is not a government wage policy of the kind considered in Parks Victoria at [207] - it is simply a preferred form of negotiation;

• (c) the Territory's suggestion that a disparity in the pay increases awarded to one cohort of CHS employees over another risks workplace disharmony is an attempt to have its cake and eat it too. If anything, the provision of variable pay increases to employees within the same cohort (i.e. medical practitioners) is far more likely to be productive of workplace disharmony than between separate cohorts performing entirely distinct functions in different locations;

• (d) what those other 18 enterprise agreements do not consider, as here, is the labour productivity gains that have been made in respect of this cohort of workers;

• (e) in circumstances where all medical practitioners' real wages have eroded, there is no discernible reason for cherry-picking wage increases for some and not others;

• (f) the on-call/re-call allowances, shift work, overtime and time off in lieu entitlements, said by the Territory to be "enhanced conditions", have existed in almost identical terms within previous iterations of the MPEA for a considerable period;

• (g) there is only a 'mere possibility' that medical practitioners will receive an ARIn. Only 25% of medical practitioners received an ARIn or s.245 payment as of 30 June 2024;

• (h) the provision of additional superannuation, personal leave, birth leave, assisted reproductive leave, primary care giver leave and bonding leave, while no doubt very welcome, does not assist in restoring the lost value of real wages and purchasing power of employees; and

• (i) in January 2025 the Territory announced that no further fee for service contracts would be issued to VMOs, which is likely to place further demands on employed medical practitioners. Medical practitioners ought to be compensated for the additional productivity gains that will benefit CHS.

[131] ASMOF submitted that that there have been ongoing labour productivity gains arising from work intensification. ASMOF relied on data provided by CHS showing the number of patients growing from 20.6% to 29.3%, when complexity is factored in. In the context where there are less resources being used, not because of the vacancies, and there is an increased workload, that means that there is a higher output with a less amount of inputs, which means that there is increase in productivity from an economic standpoint.

[132] The AMA submitted that the Commission should apply its proposed wage increases because:

• (a) no increases in wages have applied since 9 June 2022. The modest nature of past increases, in real terms, is a factor that the Commission must take into account;

• (b) real wages have decreased by 10.8% between December 2017 and December 2024;

• (c) the Commission should apply uniform percentage increases;

• (d) any increases awarded by the Commission should not upset established relativities between classifications;

• (e) "CPI + 1%" increases enable employees to recover some lost wages in real terms, and benefits the employer insofar as it distributes the 4% shortfall over four annual pay increases rather than imposing it on the Territory in an upfront lump-sum. In this regard the "+1% quantum itself is a compromise";

• (f) in awarding either retrospective or front-loaded increases to address shortfalls in real wage increases, the Commission has held that such decisions do not necessarily depend on it being satisfied of any special, compelling or exceptional circumstance (relying on Cleanaway Erskine Park at [223]); and

• (g) there is nothing novel or unique about the present case that would lead to the Commission adopting a different approach in respect of CPI and inflation.

[133] The AMA argued that real wages for medical practitioners have declined. The AMA submitted that:

• (a) maintaining CPI is the predominant or, in the alternative, a significant consideration in setting wage increases;

• (b) in assessing wage claims in the context of other workplace determinations, the Commission has placed emphasis on the importance of maintaining real wages (citing Cleanaway Erskine Park at [227]);

• (c) the maintenance of real wages are matters relevant to the assessment of wage claims in the context of workplace determinations (citing Schweppes at [241]- [242] and Austin Health at [35] and [45]);

• (d) the most appropriate measure to inform wage increases is the All Groups Consumer Price Index for Canberra;

• (e) the Full Bench in Annual Wage Review 2023-24 [2024] FWCFB 3500 at [78] and [155] appropriately used the LCI to fine tune its deliberations. Other living cost indices may have a secondary role;

• (f) real wages decreased by 10.08% between December 2017 and December 2024 under previous enterprise agreements including the 2022 Agreement;

• (g) the Territory's proposal did not cover CPI; and

• (h) the AMA's proposal will maintain real wages over the life of the Determination;

[134] The AMA provided its view of the history of bargaining for medical practitioners in the ACT:

• (a) AMA's position has always been to reasonably bargain for pay increases that avoid a reduction in real wages;

• (b) over the course of bargaining the Territory repeatedly put forward a complex hybrid offer that included dollar figure amounts as well as percentage increases, and did not result in pay increases matching relevant CPI increases;

• (c) the AMA agreed with the concept of prioritising the needs of relatively lower paid workers in a high cost of living environment, but rejected the Territory's proposal because its quantum failed to preserve real wages for any employees;

• (d) if bargaining had not become intractable it would have likely concluded by 1 January 2023 (in support of its argument that the first wage increase should operate from 1 January 2023); and

• (e) the AMA has complied with its good faith bargaining obligations.

[135] In relation to the merits of the case (per s.275(a)), the AMA submitted:

• (a) the AMA's proposed wage increases will serve to maintain real wages over the life of the Determination, enable bargaining employees to recover from real wage losses and provide the Territory with a time discount insofar as pay increases calculated using historical CPI data lag inflationary pressures that employees would have already weathered;

• (b) the AMA's position reflects wage increases that appropriately balance the interests of bargaining employees and the Territory as an employer;

• (c) the objectively likely outcome of the bargaining, had it continued, is that the Territory's position on uniform pay increases would have yielded to a result more closely premised on (1) an account for real world losses in wages; and (2) one that protected against the prospect of real world losses occurring in the future; and

• (d) the modest nature of the past pay increases is a factor that must be taken into account.

[136] In relation to the interests of employers and employees (s.275(c)), the AMA submitted that:

• (a) the modest nature of past pay increases, in real terms, is a factor that must be taken into account; and

• (b) basing wage determinations on historical CPI figures reasonably balances employee and employer interests and, in effect, represents a compromise;

• (c) on the one hand, employees are better placed to meet living cost increases if increases are based on CPI forecasts (albeit that this approach imports inherent uncertainties);

• (d) on the other hand, premising wage increases within an enterprise agreement on historical CPI movements disadvantages employees to the extent that real wage increases then lag behind the inflationary consequences on the costs of goods and services in real time; but

• (e) premising wage increases on historical CPI movements helps employers by providing budgetary certainty and, to some extent, causing relevant wage expenses to be incurred retrospectively.

[137] In relation to the public interest (s.275(d) the AMA submitted:

• (a) workforce sustainability is a matter relevant to the public interest in this case;

• (b) the increases proposed by the AMA "promote workforce sustainability, thereby supporting the appropriate and timely provision of medical services by ACT hospitals";

• (c) there is no evidence that either the AMA or the ASMOF proposal would adversely affect the safe and effective delivery of high quality health care to the community, or would not meet the objectives of s.10 of the Health Act; and

• (d) the Productivity Commission's latest official data shows that the ACT's medical practitioner workforce age profile is not 'desirable'. Compared with other major cities, the Territory's workforce has the lowest proportion aged under 30 years, the highest proportion in the 40-49 years category the second highest proportion of practitioners aged 50-59.

[138] The AMA did not go so far as to submit that the Territory acted unreasonably in the bargaining process (s.275(f)), but did submit:

• (a) there were examples of "unreasonable bargaining", including that "there appears to be a devout adherence to a particular calculation method, simply because it has been applied at other of the ACT's workplaces";

• (b) the whole of government approach to bargaining has placed the Territory in a position where it has decisively bargained with persons who were not bargaining representatives in respect of the proposed agreement for matters of essential importance to those medical practitioners who will be covered by the agreement, which was an unreasonable approach;

• (c) the Territory did not adequately demonstrate preparedness to take into account the individual and personal circumstances of the bargaining employees, as per s.228(1)(d) of the Act. By definition, a uniform whole-of-government approach to wage increases is antithetical to a bargaining approach that takes into account the living cost circumstances specifically facing medical practitioners; and

• (d) the Territory has used a biased benefit estimation methodology to support its contention that the overall remuneration package is substantial and reasonable.

[139] In response to the Territory's submissions (see [140]-[150] below) the AMA said:

• (a) the Territory has acknowledged that there may be a 'gap' between its position on wage increases and inflation. The AMA accepts that the maintenance of real wages is not a sole or independently determinative factor. Its importance in the assessment depends on the circumstances. The AMA contends that the maintenance of real wages is clearly a significant factor in the instant case, if not the predominant factor; and

• (b) the AMA agrees with the concept of prioritising the needs of relatively lower paid workers in a high cost of living environment. The AMA rejected the Territory's proposal precisely because its quantum failed to preserve real wages for any bargaining employee.

[140] The Territory's position reflected the agreement reached with the remainder of the ACTPS employees covered by enterprise agreements.

[141] The Territory said the wage increases in its proposal:

• (a) reflect those that have been implemented in all other public sector enterprise agreements applying in the Territory;

• (b) strike a fair balance between ensuring that all workers receive pay increases and prioritising the needs of relatively lower-paid workers in a high cost of living environment; and

• (c) are appropriate considering the extensive entitlements otherwise provided to medical practitioners, including new enhancements focused on senior doctors, as well as historical pay increases under the 2022 Agreement and its predecessors and overall public sector wages growth across Australia.

[142] The Territory's submissions set out the context in which its proposal was put to ASMOF and the AMA:

• (a) bargaining meetings commenced in May 2022 and continued on a regular basis. This included bargaining for the 'common core' provisions conducted by OIRWS, and parallel bargaining conducted by CHS for its employees, including with ASMOF and the AMA for the proposed MPEA. Bargaining meetings in both streams occurred on a fortnightly basis. No issues were raised about the conduct of bargaining in either stream;

• (b) the 'common core' bargaining stream included three pay offers made on behalf of the Territory. Each of those offers included (a) pay increases in a 'hybrid' structure, with some percentage increases and some flat rate increases, (b) superannuation increases, including (in the second and third pay offers) above the statutory superannuation guarantee charge rate, (c) a one-off cost-of-living supplement; and (d) backpay to February 2023 in the first pay offer and January 2023 in the second and third pay offers; and

• (c) all bargaining representatives other than those for the proposed MPEA ultimately accepted the Territory's third pay offer made on 11 April 2023.

[143] In relation to the merits of the application (s.275(a)) the Territory submitted:

• (a) the Territory's position reflects the ACT Government's position on wages. This is significant because the money that will be spent on medical practitioners' wages is public money (relying on Parks Victoria at [207]);

• (b) it is in the interests of consistency and fairness for all public sector employees to receive the same relative pay increases, especially those employees working alongside one another in the same environments and facing many of the same challenges in their work;

• (c) a significant disparity in the pay increases awarded to one cohort of CHS employees over another would risk workplace disharmony;

• (d) the pay increases proposed by the Territory are significant. For qualified medical practitioners, the increases range between approximately 8.1% (for a Senior Specialist) and 13.6% (for an Intern) over the nominal term of the draft determination, with the median increase being approximately 10% over the life of the proposed agreement. Considering the proposed pay increase, the median medical practitioner will have received an 18.6% increase in their base salary (not counting superannuation or other entitlements) over the period from September 2017 to September 2024, compared with an overall growth rate in Australian public sector wages of 18.1% over the same period;

• (e) the rate of increase in base salary for the median medical practitioner under the Territory's proposal (10% over the life of the proposed agreement) is comparable to the rate of increase in base salary under the last two MPEAs (total of 2.7% per year from December 2017);

• (f) the proposed determination incorporates several other enhanced conditions, which are particularly beneficial for senior medical practitioners;

• (g) medical practitioners may receive a range of other financial benefits extending beyond their base salary. These benefits are said to "have the general effect of substantially increasing the total remuneration of medical practitioners compared with their base salary" and are discussed at [196] below;

• (h) the disadvantage to senior medical practitioners of lower increases in their base salary is mitigated by the other enhancements to their conditions that disproportionately benefit senior medical practitioners, by rights of private practice arrangements which are only available to specialists and senior specialists and because their base salary is higher to begin with, by the fact that they receive higher dollar increases in entitlements such as superannuation and overtime which are calculated as a proportion of their base salary and by the availability of ARIns in some circumstances.

[144] The Territory recognised that the medical practitioners covered by the Determination have an interest (s.275(c)) in receiving pay increases, and in minimising the gap between those increases and inflation. The Territory also submitted that the interests of relatively lower-paid workers to be covered by the Determination are more acute and deserving of greater weight in the distribution of limited financial resources.

[145] The Territory submitted that its interests (s.275(c)) include:

• (a) promoting consistency and equity in the terms and conditions of employment made available to all employees in the ACTPS;

• (b) preserving its long-standing practice of bargaining for and agreeing 'common core' provisions on a central basis;

• (c) supporting lower-paid workers in an environment of high cost-of-living pressures;

• (d) ensuring that pay increases awarded to public sector workers remain affordable, and otherwise minimising any adverse fiscal or economic impacts, having regard to the competing demands for public money; and

• (e) supporting the ACT health system in meeting the objectives and commitments in ss.10 and 11 of the Health Act, including to improve the efficiency, effectiveness and quality of health services while ensuring that those services remain strong and viable.

[146] The Territory submitted that because the case concerns public sector employment there were significant overlaps between the interests of the parties and the public interest (s.275(d)). The Territory said its proposal is consistent with the public interest:

• (a) to promote consistency and equity in pay increases awarded across the ACT Public Service;

• (b) to maintain the Territory's long-standing practice of bargaining for and agreeing 'common core' provisions centrally, which promotes consistency and equity as well as efficiency;

• (c) to support lower-paid workers, including in moving towards substantive equality with higher-paid workers in terms of their capacity to achieve an acceptable standard of living;

• (d) to strike a balance between achieving pay increases for public sector workers on the one hand, and the costs to the public purse and potential economic impacts of those increases on the other, especially having regard to competing demands for public money; and

• (e) to ensure that the public health system remains efficient, strong and viable consistently with the objectives and commitments in the Health Act.

[147] The Territory submitted that resolution of the disputed issues will not have a bearing on productivity in the relevant sense (s.275(e)).

[148] The reasonableness of the Territory's conduct in bargaining (s.275(f)) is demonstrated, the Territory said, by the fact that agreement was reached on 'common core' provisions (including pay increases) in respect of most of the ACTPS, including most CHS employees, and most aspects of the proposed MPEA were ultimately agreed with the relevant bargaining representatives. The Territory did not wish to raise any issues with the conduct of the other bargaining representatives during bargaining.

[149] In reply to ASMOF's and the AMA's submissions the Territory said:

• (a) viewed over a longer historical timespan, the Territory's proposal would not result in a substantial reduction in real wages, because pay increases under the MPEA have historically outpaced inflation. For example, considering the Territory's proposal, the cumulative percentage pay increase for a Senior Specialist under MPEAs over the last thirteen years is less than half a percentage point short of the cumulative increase in the CPI over the same period;

• (b) any additional cost pressure, including additional spending on wages beyond that which is incorporated in the Territory's budget, will increase pressure on the Territory's fiscal position. These budgetary and fiscal impacts are relevant consideration in terms of the merits of the case (s 275(a)), the Territory's interests (s 275(c)) and the public interest (s 275(d));

• (c) neither ASMOF nor the AMA contends that any party behaved unreasonably or failed to comply with good faith bargaining requirements in that process;

• (d) in the course of bargaining ASMOF's and the AMA's proposals were properly considered. Good faith bargaining does not require concessions or agreement.

[150] The Territory acknowledged the pressures felt by individual doctors in their work. However, the Territory said, these matters do not lead to a conclusion that ASMOF's (or the AMA's) proposals should be accepted over the Territory's proposal:

• (a) CHS has strong attraction at the junior medical practitioner level. The Territory is the only jurisdiction that fully recruited for its medical intern positions in 2024;

• (b) for other cohorts of medical practitioners, many factors influencing attraction and retention are outside CHS's control and unrelated to pay;

• (c) the CHS workforce has consistently grown since January 2021;

• (d) there is no evidential foundation for the assertion that adopting ASMOF's (or the AMA's) wages proposal over the Territory's will improve attraction or retention rates, and there are good reasons to think they will not;

• (e) accepting that individual doctors may be experiencing increased workloads does not necessarily mean there have been productivity gains in the sense of the conventional economic concept of quantity of output relative to the quantity of inputs; and

• (f) to the extent that increased workloads translate to longer hours, employees other than senior medical practitioners are paid penalty rates for those hours, and senior medical practitioners are entitled to access 'onerous hours' entitlements when they work more than 90 hours in a fortnight.

[151] In relation to the Territory's capacity to pay the higher increases sought by ASMOF and the AMA, the Territory's closing submissions included the following:

"But the reality is, and you have the evidence - is that government's capacity to pay often translates into governments having to go into deficit, which in turn is borrowing more money, which in turn has an impact on the delivery of public sector services, either increases of taxes, rates or cut back in services.

So the capacity to pay issue here is not simply the government could pay if it wanted to, which seems, in our respectful submission, to be the subtext of the submissions put against the Territory, because we haven't, as the Territory, come out and said we cannot pay this under any circumstance. But that doesn't open the window that the capacity to pay means that the demands should be met or that they're appropriate or they're divorced from the broader context in which the delivery of public services and the payments associated with the delivery of public services for those who are employed shouldn't be taken into account."

Consideration - the merits of the case (s.275(a))

[152] The primary issue for determination is the wage increases applicable to medical practitioners.

[153] ASMOF's and the AMA's merit arguments can be distilled into the following propositions:

• (a) salary increases should be greater than the Territory's proposal because real wages have declined in recent years and the Territory's proposal would result in a further decline in real wages;

• (b) there have been significant productivity gains in the CHS through medical practitioners meeting ever-increasing demands and working under increasingly difficult working conditions;

• (c) higher wages will help attract and retain medical practitioners to the ACT; and

• (d) the Territory's decision to prioritise the needs of relatively lower paid workers in a high cost of living environment fails to preserve real wages for any employees. Wages for medical practitioners should be increased by uniform percentages rather than fixed amounts.

[154] The Territory's merit argument can similarly be distilled to the following propositions:

• (a) the Territory's position reflects the ACT Government's position on wages, which should be endorsed by the Commission in the interests of consistency and fairness for all ACTPS employees;

• (b) the pay increases proposed by the Territory are significant;

• (c) the Territory's proposal strikes a fair balance between ensuring that all workers receive pay increases and prioritising the needs of relatively lower-paid workers in a high cost of living environment; and

• (d) medical practitioners may receive a range of other financial benefits extending beyond their base salary.

[155] In our view the following factors are particularly relevant in assessing the merits of the respective cases:

• (a) the history of bargaining in the ACTPS and the fact that wage increases have been agreed for all other ACTPS employee groups, including those within the CHS;
• (b) public sector considerations;
• (c) the level of inflation and its impact on real wages;
• (d) attraction and retention of medical practitioners;
• (e) changes in the conditions under which medical practitioners are required to work; and
• (f) the Territory's right to manage its health service subject to any demonstrated unfairness to employees.

[156] The bargaining process for the ACTPS is not new. There are obvious efficiencies in the process adopted by the Territory and the relevant unions through which it negotiates common 'core' conditions in parallel to bargaining with individual directorates and agencies.

[157] The object of this approach includes to deliver outcomes that are consistent across the ACTPS. The Territory's departure in the current round of bargaining from its historical approach to wage setting, aims to deliver higher net increases as a proportion of salary to lower-paid ACTPS employees in the context of heightened cost of living pressures. The necessary consequence of this approach for ACTPS employees in classifications attracting higher salaries is that the net value of proposed wage increases is lower as a proportion of base earnings.

[158] The AMA criticised what it said was the Territory's "devout adherence to a particular calculation method, simply because it has been applied at other of the ACT's workplaces." This is an oversimplification of the Territory's position, which has the policy objective described above.

[159] There is no evidence to suggest that wage increases agreed in connection with the 18 other ACTPS enterprise agreements were not the product of genuine bargaining between the Territory and interested unions. We accept the evidence of the Territory that it did not come to the bargaining table initially with any prepared wages proposal, and that it only put forward wage proposals after having received and considered the claims made by respective unions. Ultimately, the agreed outcome for the other 18 enterprise agreements reflected the Territory's third wages proposal. The evidence does not permit a finding that the Territory's decision to limit the value of wages offered to ACTPS employees was an arbitrary one, or irrational or unreasonable.

[160] Although it had no formal published 'wages policy', the Territory adopted a position in bargaining for the MPEA that it would not agree to wage increases outside of the parameters agreed in the common core bargaining process. This was a position it was entitled to take.

[161] Conversely, it was open to ASMOF and the AMA to hold firm in their rejection of wage increase offers put by the Territory in a bid to try and achieve a unique and more generous outcome for medical practitioners.

[162] After its proposal was put to a vote in June 2024 and rejected, the Territory explored with ASMOF and the AMA ways to bridge the gap between the parties to no avail. Although the Territory was firm in its view that wage increases reflecting the outcome of bargaining for the common core conditions should apply, it remained open to the possibility of reaching a compromise. It considered seeking an exemption from the ACT Government that would allow it to negotiate differently with the doctors in respect of their enterprise agreement but was not persuaded to do so.

[163] The Commission's task is to assess the respective positions of the parties in relation to the matters at issue and, by reference to the statutory factors, arrive at an outcome that is fair in all the circumstances, that appropriately balances the interests of the parties and would be regarded as appropriate in the context of the bargaining had the bargaining concluded successfully (see [29]-[31] above).

[164] In this matter, we consider the starting point to be that if bargaining had concluded successfully, the appropriate and fair outcome would be a consistency of approach to wage increases across the employed ACTPS workforce, including for medical practitioners. A departure from that principle would require some compelling basis. In this respect, it is not necessary for either ASMOF or the AMA to show that the Territory acted unreasonably in rejecting any proposals put in the course of bargaining.

[165] We do not find the arguments in favour of such a departure in this case compelling.

[166] Firstly, we are satisfied that the outcome for ACTPS employees in relation to improved common core conditions is, without more, equally appropriate and fair for medical practitioners in the ACT. Although we accept that on an overall basis, the Territory's proposed level of increases will not keep pace with inflation over the relevant period (see below), wage increases are only one component of an overall bargaining outcome. Other improvements in terms and conditions of employment have an overall net value to employees. The effect of the Territory's position on real wages for medical practitioners is not, on its own, a compelling basis to distinguish medical practitioners from the remainder of the ACTPS.

[167] Secondly, there is no cogent and persuasive argument as to why medical practitioners should be treated more favourably than all other ACTPS employees, including their fellow CHS employees.

[168] Thirdly, the Territory's proposal for wage increases should not be considered in isolation or without regard to the context in which it was put - being the long-established parallel bargaining process for the ACTPS and a public policy position of supporting low-paid employees in particular, on the basis that they are most likely to have been affected by cost-of-living pressures in the post-pandemic period. We accept that flat dollar increases will mean that higher paid employees will receive proportionately less than those who earn less. On the other hand, medical practitioners have access to a range of benefits that do not appear to be widely available to lower paid CHS employees.

Consideration - Merits - Public Sector Considerations

[169] It is important to recognise the Territory's obligation as a government to deliver a wide range of public services across a wide range of sectors using finite resources.

[170] Both ASMOF and CHS are right when they say, respectively, that the Territory can afford to pay more than they have offered and that doing so comes at a cost to the overall delivery of public services in the Territory.

[171] The Commission is asked to make a decision about the Territory's allocation of its resources in relation to public sector pay. We accept the evidence of Mr Hodder that the difference between the Territory's position and the AMA's and ASMOF's positions on wages amounts to somewhere between $92M and $105M respectively.

Consideration - Merits - Inflation and Maintenance of Real Wages

[172] The primary argument in support of the position put by ASMOF and the AMA is that the Territory's proposed increases will not maintain real wages for medical practitioners in CHS.

[173] Unsurprisingly there was an active contest in the evidence about whether real wages for medical practitioners have declined in recent years and, if so, by how much.

[174] The Territory presented calculations indicating that salaries have kept pace with inflation since 2011 - relying heavily on larger salary increases applied prior to 2018. The Territory also provided calculations indicating that since 2018 salaries for medical practitioners have kept pace with seasonally adjusted public sector wage growth.

[175] ASMOF and the AMA presented their own comprehensive analysis showing that salary increases, including those proposed by the Territory, have not kept pace with CPI increases since 2018.

[176] Plainly, the maintenance of real wages is a relevant consideration for the reasons described above. We accept that the Territory's proposal will deliver an outcome that is less than CPI over the relevant period. By how much is not necessary to determine, because it is not always the case that enterprise bargaining must at least result in wage increases equivalent to CPI.

[177] Sometimes, workplace determinations made by the Commission have resulted in wage increases that are lower than CPI over the relevant period. Sometimes, the reverse is true. As stated above, the task is to arrive at an outcome that is fair in all the circumstances, that appropriately balances the interests of the parties and would be regarded as appropriate in the context of the bargaining had the bargaining concluded successfully. No particular outcome is mandated by the legislative scheme on matters over which the Commission has arbitral discretion.

[178] For this reason, the argument of ASMOF and the AMA that the Territory's proposal is inadequate merely because it does not maintain real wages must fail, as must the converse contention that their respective proposals must succeed because theirs do.

Consideration - Merits - Attraction and Retention

[179] ASMOF and the AMA submit that higher salary increases for medical practitioners will have a positive impact on attraction and retention of medical practitioners in the ACT.

[180] Within the evidence and the submissions there are several aspects to this argument. It was said that:

• (a) the Territory has struggled to attract and retain medical practitioners;
• (b) shortages caused by this struggle have had significant and ongoing impacts on the work of medical practitioners and the services they provide to the community;
• (c) one of the reasons that the Territory has struggled is because salaries in the ACT are lower than in other jurisdictions; and
• (d) awarding higher increases will improve CHS' capacity to attract and retain medical practitioners.

[181] Medical practitioner witnesses gave evidence of the pressures and difficulties they encounter in their work. Although we have not published all of the detail of that evidence for reasons of confidentiality, we recognise and appreciate that medical practitioners in the ACT often work in difficult and challenging circumstances, including because of staff shortages.

[182] On the evidence, difficulties attracting and retaining medical practitioners are not new. It is far from clear that wage increases of the level proposed by ASMOF and the AMA in this case would have any significant material impact on this challenge, which is more pronounced among senior and more experienced doctors than those at the start of their career. For example, the ongoing difficulty in attracting and retaining specialised medical staff is a problem acknowledged by the Territory in the Canberra Health Services Annual Report 2018-19.

[183] Uncontested evidence went to several significant factors beyond the control of CHS that have hampered attraction and retention - see for example the evidence of Ms Zagari summarised at [116] above. Such factors included the ACT's relatively small population centre and associated limits on the number of complex or specialised cases handled by the CHS.

[184] We have reservations about the reliability and relevance of comparisons of salaries across jurisdictions. As Mr Linton explained, it is difficult to find a suitable comparator because of differences in how salaries are constructed in different jurisdictions (see [110]-[111] above) and limitations on the availability of data in relation to individual salary outcomes. As a result, any comparisons must be treated with caution. Taking them at face value, medical practitioners in the ACT are paid relatively well in comparison to many of their interstate colleagues. They may not attract the highest salaries in Australia, but neither do they fall at the lower end of the scale.

[185] We also note the observations of the Full Bench in Australian Nurses Federation v Queensland Department of Health [2003] AIRC 518 at [58]- [65], (2003) 126 IR 244 at 264-6. At [59] the Full Bench said:

"The AIRC in exercising its discretion to grant a wage claim would not as a general proposition, do so on the basis of attraction and retention for particular classes or categories of employees. It has long been established within federal arbitral jurisprudence that arbitral tribunals consider it should be left within the province of the employer to determine such incentives in accordance with its policy settings. In this matter, issues related to attraction and retention elements in remuneration packages pervaded the bargaining period; they have dominated the hearing before us; and, the employer party has responded by itself seeking particular award provisions, selectively targeted. We have formed the view that, in the circumstances before us, we should depart from the usual practice adopted by the Commission and make award provisions based upon attraction and retention considerations."

[186] As the extract above indicates, the Full Bench did depart from the usual practice however they did so only in relation to two classifications, only because "a case has been made out on attraction and retention grounds" (at [65]) and, perhaps, because the "structure of targeted adjustments had some support from [the employer]" (at [60]).

[187] We have referred earlier in this decision to Attraction and Retention Incentives (ARIns) which are explicitly intended to improve attraction and retention. ARIns are reviewed regularly by reference to comparisons with other jurisdictions and, significantly, CHS provides those comparisons to individual senior medical practitioners (see [110]-[111]).There is of course an element of discretion insofar as each ARIn applies at the discretion of the Director General. However there is also, as the evidence shows, elements of science and methodology to the arrangements.

[188] We accept that the Territory has struggled to attract and retain medical practitioners for some time for different reasons. Although we do not discount the possibility that salaries in the ACT may have contributed to these difficulties, on the evidence we are not satisfied about how significant that contribution is.

[189] It was said by ASMOF and the AMA that flat dollar increases will disturb wage relativities in an unsatisfactory way.

[190] If the Territory's proposal is applied then the internal relativities between classifications covered by the Determination will change to the advantage of lower paid classifications. There is already a significant range across base salaries within the classifications under the 2022 Agreement. For example, the base rate of a senior specialist is more than triple the base rate of an intern. The flat dollar increases proposed by the Territory will compress relativities within the classifications in the Determination, although not significantly.

[191] As noted above, for higher paid medical practitioners the flat dollar increases deliver proportionately lower increases. In bargaining for the common core conditions, ASMOF and the AMA argued strongly for the usual approach to percentage increases, presumably to avoid this outcome.

[192] ASMOF referred to earlier decisions in which the Commission expressed understandable reluctance towards applying flat dollar increases because of the consequential effect on wage relativities.

[193] The Territory argued that its approach allows for a fairer overall result because it allows the Territory to apply larger increases to lower paid workers. The Territory said its approach and policy is to achieve the objects of the Public Sector Management Act, and its 'one service' approach to operating the ACTPS across its directorates.

[194] ASMOF's submissions referred to potential disharmony in the workplace if wage relativities were compressed by the inclusion of flat dollar increases. There are arguments for and against this submission. Applying wage increases on a percentage basis also delivers better net outcomes for higher paid employees, leading to the potential for perceptions of unfairness. We accept that the Territory's approach will reduce the gap between higher paid medical practitioners and those at lower classification levels. This will be the same outcome as applies to employees covered by the other three enterprise agreements that apply to CHS.

[195] ASMOF and the AMA submit that higher paid medical practitioners are disadvantaged by the flat dollar increases compared to lower paid workers. However ASMOF and the AMA also submit that the Commission should disregard the reliance placed by the Territory on benefits only available to higher paid medical practitioners, such as the ARIns. These arguments do not sit together well.

Consideration - Merits - Other financial benefits

[196] The Territory submitted that in evaluating its pay proposal, it must be kept in mind that medical practitioners may receive a range of other financial benefits extending beyond their base salary. These other benefits include on-call and recall allowances, shift work entitlements for medical practitioners required to work on shifts, penalty entitlements and/or 'time off in lieu' for overtime or, in the case of staff specialists, where they are required to work 'onerous hours' (more than 90 hours in a fortnight), rights of private practice arrangements and the possibility of ARIns.

[197] The existence of these other sources of remuneration can be seen to ameliorate the effect of any reduction in the real value of base salaries under the MPEA.

[198] We accept that most of the benefits relied upon by the Territory have been available for some time. However, as noted above, we also accept that these other variable components, particularly the ARIns, are relevant to consideration of the overall outcome in bargaining for medical practitioners.

Consideration - the interests of the employers and employees who will be covered by the determination (s.275(c))

[199] Section 275(c) calls for an appropriate balance between the legitimate expectations of the employers and employees (see Qantas at [39] adopting Curragh, see also Parks Victoria at [272]). For example, in Qantas the Full Bench found that the employer and employees shared a common interest in the viability and competitiveness of the employer and that employees "have a legitimate expectation to be involved in the development of the changes, and contribute to ways in which the operational goals of greater efficiency and reduced costs can be achieved without placing undue hardship on them" (at [40]-[41]).

[200] On a superficial level, the interests of CHS lie in achieving its proposed salary increases, while the interests of medical practitioners call for adoption of the best aspects of ASMOF's and the AMA's proposals.

[201] We acknowledge that ASMOF and the AMA have campaigned for a long time for maintenance of real wages (and wage relativities) for medical practitioners. For an even longer time salaries for medical practitioners have been decided within the ACTPS' parallel bargaining process. It is not possible to speculate about the degree to which medical practitioners have benefitted from this parallel bargaining process over the long term in the absence of evidence going to the various elements that comprise bargained outcomes over time.

[202] Commonality so far as is practicable is plainly in the interests of the Territory in the context of separate bargaining processes covering 19 distinct work and employee groups. CHS also has an interest in managing finite resources in complex healthcare settings; balancing the need to remunerate employees properly against the many competing demands for appropriate resourcing of its services. Medical practitioners need recognition of the difficult work that they do, often in challenging circumstances. Recognition can manifest in a range of ways, including through the maintenance of real wages and relativities with other CHS employees. They also need better resourcing of the facilities they use, and the services they provide, to reduce pressures associated with roster shortages and lack of work/life balance.

[203] In the end, these are shared interests. They call for a balanced approach, which allows for investment both in the wages of medical practitioners and in the resources they rely on to do their work.

Consideration - the significance, to those employers and employees, of any arrangements or benefits in an enterprise agreement that, immediately before the determination is made, applies to any of the employers in respect of any of the employees (s.275(ca))

[204] We have referred above to a range of other benefits available to medical practitioners - many of which are incorporated as terms in the 2022 Agreement and in predecessor MPEAs. As important terms and conditions of their employment, these have obvious significance to employees to whom the 2022 Agreement applies. The same can be said for the various arrangements in the CHS that reflect the systems and processes established by CHS through which it employs medical practitioners. These will largely continue in operation as agreed terms of the Determination.

[205] Consideration of the public interest imports a discretionary value judgement as to matters that may affect the public as a whole as distinct from the interests of the parties, although these may overlap. That consideration is confined only by the subject matter, scope and purpose of the Act. Relevant matters may include the achievement or otherwise of the objects of the Act, employment levels, inflation and maintenance of appropriate industrial standards (see Parks Victoria at [49]-[51]).

[206] The parties all made submissions to the effect that the improved functioning or operation of CHS is in the public interest, which is undoubtedly correct. However the parties did not agree on which outcomes would improve the functioning or operations of the CHS or why.

[207] ASMOF submitted that its proposal would improve CHS' operation or services to the community (and therefore be in the public interest) by providing improved job security for medical practitioners, increasing opportunities for permanent employment for all members of the community, appropriate and timely management of patients, and improved attraction and retention of medical practitioners.

[208] The AMA submitted that its proposal would improve CHS' operation or services to the community (and therefore be in the public interest) by paying medical practitioners sufficiently such that the Territory does not suffer from further retention issues that cause delays and significant health and safety risks to patients, and that the increases proposed by the AMA "promote workforce sustainability, thereby supporting the appropriate and timely provision of medical services by ACT hospitals" and improve CHS' workforce age profile.

[209] The Territory submitted that the public interest would be served by granting its proposal which would promote consistency and equity in pay increases awarded across the ACTPS, support lower paid workers within CHS and strike a balance between achieving pay increases for public sector workers on the one hand, and the costs to the public purse and potential economic impacts of those increases on the other.

[210] We accept that, in broad terms, there are public interest benefits to each proposal because of the important services provided by CHS to the public.

Consideration - How productivity might be improved in the enterprise or enterprises concerned (s.275(e))

[211] ASMOF submitted that the Territory has significantly benefited from labour productivity gains arising from work intensification. ASMOF relied on evidence of significant growth in patient numbers compared to lower rates of growth in staff numbers.

[212] The evidence of these matters was very broadly stated. Several medical practitioner witnesses described their busy work environment and having to cope with planned and unplanned staff shortages. Witness MP-3 and Witness MP-4 referred to regularly being asked to work additional shifts as paid overtime but choosing not to. Witness MP-2 said that on average they work "30 minutes to two hours of overtime each week".

[213] Ms Zagari said that in recent years there has been a significant increase in the demand for CHS services and, CHS is more heavily reliant upon VMO, locum and agency staff to maintain those services. Ms Zagari also referred to the physical infrastructure remaining the same. She explained that while more patients were coming into emergency departments and being admitted, their length of stay was decreasing.

[214] We are not persuaded that higher wage increases are justified based on past productivity improvements, or that without more, they will lead to productivity improvements in the future. As a general principle, working in an environment of staff shortages is more likely to lead to burnout and reduced productivity overall. To the extent that this problem can be overcome, it requires new investment in resources rather than increasing the cost of existing resources. As such we do not find the resolution of the wages dispute as likely to have a bearing on productivity in the relevant sense.

Consideration - the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement (s.275(f)); and

Consideration - the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements (s.275(g))

[215] Earlier decisions have drawn a link between the conduct of bargaining representatives and the awarding of retrospective increases. The Full Bench in Schweppes said at [133]-[135]:

"[133] The bargaining process can be protracted, particularly where a party is advocating significant changes to existing practices. The time taken in bargaining is not necessarily a function of unreasonable behaviour by a particular party. Absent unreasonable behaviour there is no reason in principle why a party should be disadvantaged by the time taken in the bargaining process.

[134] In an appropriate case behaviour by a bargaining representative may warrant a different approach. If the conduct of the bargaining representative was not reasonable (s.275(f)), or the bargaining representative did not comply with the good faith bargaining requirements (s.275(g)) then it may not be appropriate to take into account the period since the nominal expiry date of the previous agreement, either in whole or in part. But this is not such a case. Neither party contended that s.275 (f) or (g) were enlivened in this case.

[135] Protected industrial action is conceptually different. The very purpose of such action is coercive. It is intended to facilitate the making of an agreement by inflicting losses on the other bargaining party. As we have already noted, that statutory purpose would be undermined if a party was later compensated for the losses they incurred as a consequence of another party engaging in protected industrial action."

[216] Section 275(f) is not a vehicle for rewarding or punishing bargaining representatives according to how reasonably they behaved during bargaining. It simply requires the Commission to take the conduct of bargaining representatives into account in arriving at a conclusion that would be regarded as appropriate in the context of bargaining, had the bargaining concluded successfully.

[217] We have described above the evidence about each party's conduct in bargaining. There is no claim that unreasonable conduct of a bargaining party should affect the wages outcome or backdating of salary increases. As such we do not need to canvas this aspect in any further detail. Each party sought backdated salary increases and we do not propose to take a different course.

Consideration - incentives to continue to bargain at a later time (s.275(h))

[218] Section 275(h) requires the Commission to take into account incentives to continue to bargain at a later time, consistent with the objects of encouraging collective bargaining and the making of enterprise agreements.

[219] We have described above the task of the Commission as being to assess the respective positions of the parties objectively, and to arrive at an outcome that would be regarded as appropriate in the context of bargaining had it concluded successfully. This requires an overall judgment about what the appropriate workplace determination should be until the parties replace it with a new enterprise agreement of their own. There is no principle that mandates a particular outcome when it comes to wage increases and relativities, and although keeping pace with inflation is an important and relevant consideration, each case turns on its own facts and circumstances.

[220] For the reasons above, a compelling case might persuade us to depart from an approach that delivers consistency of wage increases across the employed ACTPS workforce. No compelling case for a different outcome has been made out and we are not satisfied that setting wage increases for medical practitioners at more generous levels than applied in all other areas of the ACTPS will incentivise future bargaining between the parties.

[221] On balance, the appropriate and fair outcome is to apply the same approach to salary increases in the workplace determination for medical practitioners as those agreed for other ACTPS employees. This is the outcome that in our assessment would be regarded as appropriate in the context of bargaining had it concluded successfully.

[222] In the course of bargaining ASMOF proposed a change to the Medical Education Expenses (MEE) allowance in the MPEA. The 2022 Agreement allows Specialists and Senior Specialists to claim reimbursement for medical education expenses up to a set limit. Mr Ross gave the following evidence about MEE:

• (a) the funds for MEE are held in trust in what is known as the Private Practice Fund (PPF) for that purpose. The operation of the PPF and MEE is administered under the terms of a Memorandum of Understanding between ASMOF and CHS;

• (b) while the administration of the MEE is complex, for current purposes it should be considered as a 'reimbursement model' under which eligible Medical Practitioners pay for their own training costs and then claim a reimbursement of those costs through MEE.

[223] In 2022 ASMOF sought the option of having the MEE allowance paid as an ongoing allowance that was not dependent on employees incurring the expense. Mr Linton said there was some negotiation over the superannuation consequences of ASMOF's proposal and about transitional arrangements. Ultimately the changes to the MEE arrangements were agreed between the Territory and ASMOF.

[224] The AMA has not committed to a position on the matter, which we found above means it is not an agreed term as between the Territory and the AMA.

[225] Shortly before the intractable bargaining declaration was made, Witness MP-8 nominated as bargaining representative and took issue with the proposed changes to the MEE arrangements. In the arbitration process a group of radiation oncologists filed evidence and submissions opposing the changes to the MEE. Given that the matter was not an agreed matter between the Territory and the AMA, we do not need to precisely determine whether Witness MP-8's last-minute opposition separately caused MEE to still be in issue.

[226] Witness MP-8's evidence and submissions, as well as Witness MP-9's evidence and the submissions of the radiation oncologists, is summarised below.

[227] Witness MP-8 is a medical practitioner employed by the Territory. Shortly before ASMOF applied for an intractable bargaining declaration, Witness MP-8 appointed themself as a bargaining representative and took issue with the proposed changes to the MEE arrangements.

[228] Witness MP-8 thinks that the MEE changes proposed are incredibly detrimental to CHS.

[229] Witness MP-8 filed two documents in the proceedings that are primarily submissions as to why the proposed change to the MEE arrangements should be rejected. Both documents contained a mixture of evidence and submissions. Witness MP-8 was not required for cross-examination.

[230] Witness MP-8 said that the value currently available for a full-time senior medical officer is $21,668, but this can be doubled if needed up to $43,336. This is in line with education expenses entitlement for NSW Senior Medical Officers ($38,000). They explained that the sum is reimbursed as a remittance and is not subject to tax.

[231] Witness MP-8 suggested that Senior Medical Officers were deeply unhappy with the changes proposed by ASMOF at the ballot voted upon in June 2024. This was part of the reason that over 80% of doctors voted against the proposed MPEA.

[232] Witness MP-8 is concerned that Senior Medical Practitioners will not use their allowance for education purposes, rather it will go towards personal budgets and expenditure because it is easier and financially more advantageous.

[233] Witness MP-9 is a staff specialist employed by the Territory since 2016. Witness MP-9 gave evidence on behalf of a group of radiation oncologists who are concerned about the proposed changes to the MEE arrangements.

[234] Witness MP-9 explained that radiation oncologists are required to undertake continuing professional development (CPD) activities on regular basis, and that an aspect of CPD, but not the only aspect of CPD, is continuing medical education.

[235] Witness MP-9 and their radiation oncologist colleagues are concerned that the nature of the "allowance" will be fundamentally changed from being essentially a "reimbursement" to that of the payment of a sum of money with no necessary or actual connection to "medical education expenses" or to the payment of such expenses.

[236] Witness MP-9 reasoned that if the quantity (or amount) of medical education that a medical practitioner undertakes is reduced or is likely to reduce then the quantity of output (number of patients property treated, number of procedures performed (etc.)) using or having regard to the latest medical knowledge will reduce or likely reduce.

[237] Witness MP-9 said that the current arrangements encourage medical practitioners to complete a significant amount of continuing medical education without being 'out of pocket' and ensures that money that is 'put aside' as being expressly referable to medical education expenses is actually paid and used for medical education.

[238] The radiation oncologists argued that:

"Put simply, if the quantity (or amount) of medical education that a medical practitioner undertakes is reduced or is likely to reduce then the quantity of output (number of patients property treated, number of procedures performed (etc.)) using or having regard to the latest medical knowledge will reduce or likely reduce.

... what is proposed by the Territory puts the medical practitioner on the horns of a professional and ethical dilemma:

(a) do less medical education - which is not in the interests of either the practitioner, the Territory or the public patients that they treat; or

(b) do the same as you are presently doing, but pay the difference from what your (reimbursement-based) allocation presently is out of your own pocket.

That is not desirable from a public interest perspective."

[239] In short, these medical practitioners were concerned that the proposed change to the MEE arrangements would reduce the amount of time and money spent by medical practitioners on education, which would be detrimental to the profession and consequently to the public.

[240] Mr Schmidt was cross-examined by Witness MP-8. Under cross-examination Mr Schmidt indicated that the AMA did not canvas ASMOF's proposed changes to the MEE arrangements with its members. Shortly before an agreement was put to vote Mr Schmidt spoke to Witness MP-8 about their concerns regarding the MEE. Mr Schmidt said in cross-examination that he did not raise Witness MP-8's concerns with ASMOF or the Territory because "it was [his] belief that there was no opportunity to change the document that was to be presented for a voting at that time."

[241] The Territory's brief closing submission aptly summarises its position:

"On the issue of whether or not there was already an agreement and the question of the MEE clause could even be raised, the Territory takes a neutral position on that.

In terms of the substantive merits, the Territory's submissions are that it wishes to make clear its expectation as an employer that the specialists and senior specialists who receive the MEE allowance will use it for its intended purpose of paying for medical education expenses. They are now senior doctors who have a professional responsibility to maintain their knowledge and skills. The Territory expects and trusts that they will use the allowance responsibly to do so. They have a financial incentive to use the allowance for medical education expenses rather than just pocketing it, but otherwise the arrangements with the MEE and the decisions that the practitioners make themselves are matters for them to make, but you've heard the Territory's expectation that this is not intended to supersede or in any way to diminish the importance of ongoing medical education."

[242] We are satisfied that it is appropriate and reasonable to include the changes to the MEE arrangements in the Determination in the form agreed to as between ASMOF and CHS.

[243] We accept that some medical practitioners have a generalised concern that other medical practitioners will not spend as much money on education if the MEE system is changed. However, we note the Territory's expectations above and also that medical practitioners have specific CPD obligations. We proceed on the basis that senior medical practitioners covered by the Determination will meet at least their ongoing professional development requirements.

[244] In our view the proposed change will remove one administrative layer to the benefit of the Territory without causing material detriment to medical practitioners. Instead of submitting expense records to the PPF for reimbursement, medical practitioners will need to maintain records of education expenses incurred as part of their taxation requirements. As ASMOF submitted - the change is cost neutral for medical practitioners.

[245] Witness MP-8 suggested that there might be taxation and/or superannuation consequences if senior medical practitioners do not spend the equivalent amount on education or if the expenses incurred are not tax deductible. We do not find these concerns persuasive.

[246] A draft workplace determination to give effect to our decision, based upon the draft workplace determination filed by the parties, will shortly be issued to the parties.

[247] The parties are directed to confer in relation to the draft workplace determination, and to file any submissions (jointly or separately) identifying any typographical errors or omissions or other inadvertent drafting difficulties in the draft determination on or before 23 October 2025.

[248] We will make the final determination shortly thereafter.

J Martin of Counsel instructed by Slater & Gordon Lawyers for Australian Salaried Medical Officers Federation

K Eastman SC of Counsel with D Fuller of Counsel and K Weir of Counsel instructed by ACT Government Solicitor for Australian Capital Territory as represented by Canberra Health Servies

S McIntosh of Counsel instructed by Sullivans Legal Co for Australian Medical Association (ACT)

Witness MP-8, Independent Bargaining Representative

[1] Australian Salaried Medical Officers Federation v Australian Capital Territory as represented by Canberra Health Services [2024] FWC 3117.

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