s.234 - Application for an intractable bargaining declaration

Australian Salaried Medical Officers Federation

ACT PUBLIC SECTOR MEDICAL PRACTITIONERS DETERMINATION 2023-2026

Application for an intractable bargaining declaration; workplace determination - finalisation of terms - workplace determination made.

[1] Further to our decision of 14 October 2025 (see [2025] FWCFB 229) the parties have conferred on the final terms of the workplace determination to be known as the ACT Public Sector Medical Practitioners Workplace Determination 2025 (the Determination).

[2] A small number of matters remain for consideration. In this decision we have used the same defined terms and abbreviations as we did in our previous decision.

[3] The bargaining representatives do not agree on the final terms of clause 4.3. In the course of the bargaining, the parties agreed on the terms of clause 4.2 and 4.3 as follows:

"4.2. The nominal expiry date of this Determination will be 31 March 2026.

4.3. Bargaining for a replacement enterprise agreement will commence no later than eight months prior to the nominal expiry date of this Determination."

[4] The effect of clause 4.3 is that bargaining for a replacement agreement was due to commence on 31 August 2025. That date has now passed.

[5] The Territory seeks an amendment to clause 4.3 to require bargaining to commence no later than three months before the expiration of the Determination. It submits, reasonably, that given the passage of time since bargaining effectively concluded, the parties will be in breach of clause 4.3 as soon as the Determination commences if the clause is not amended.

[6] ASMOF argues that clause 4.3 should not be altered because the Determination should be in the same terms as the other ACTPS agreements. ASMOF also argue that the effect of the Territory's proposal is to preclude Medical Practitioners and their Union from bargaining for the core conditions.

[7] The AMA similarly argues that reducing the period to three months would "undermine" the Full Bench's decision that medical practitioners should not be distinguished from other ACTPS employees.

[8] There is a more significant impediment to the Territory's proposal by reason of the terms of the statute. Subsection 270(2) of the Fair Work Act 2009 (Cth) (Act) requires the determination to include the agreed terms. Clause 4.3 is one such term. It must be included in the determination as made.

[9] However, the issue identified by the Territory needs to be addressed to ensure that clause 4.3 has meaningful operative effect and to ensure the parties are not disadvantaged by the time taken to bring this matter to a conclusion. We see no reason why the practical difficulties identified by ASMOF and the AMA cannot be overcome by the commencement of bargaining in relation to medical practitioners as soon as practicable after the determination is made. To date, the primary focus of bargaining has been the common 'core' conditions, which are negotiated with all ACTPS unions on the basis that they will apply in the same way to all ACTPS employees, including medical practitioners. ASMOF and the AMA will have a reasonable opportunity to contribute to bargaining on those matters once bargaining for a replacement agreement commences. Further, we do not agree that a different approach to the commencement date for bargaining will undermine our earlier decision. It is a practical necessity because of the different course adopted in bargaining in relation to medical practitioners.

[10] We will vary the determination once made under s.218A (as it applies to workplace determinations under s.279) - see further below.

[11] The bargaining representatives agreed on staged increases in allowances from 1 January 2023 onwards. The AMA proposed that additional words be included:

"Any subsequent ACTPS-wide adjustments to allowance rates during the life of the Determination will automatically apply to this Determination."

[12] We do not think that this additional provision is necessary. The life of the Determination is relatively short and it can be assumed that all ACTPS-wide adjustments "during the life" of the Determination are already known and have been incorporated into the specific adjustments already included in the Determination.

[13] ASMOF, the AMA and the Territory have agreed that that clause 112.1 should be in the following terms:

'From 1 July 2025 each Specialist and Senior Specialist who is eligible for TESL will be paid an allowance of $19,707 per annum for Medical Education Expenses (MEE). The allowance will be paid on a fortnightly basis and will count as salary for superannuation purposes.'

[14] One independent bargaining representative does not agree with the amount proposed by the Territory. No submissions have been received arguing for a different rate.

[15] In the circumstances we are content to apply the amount agreed by the majority of bargaining representatives.

[16] In the 2022 Agreement the annual limit for reimbursement of medical education expenses for full-time Specialist and Senior Specialist was adjusted "in line with ACT Treasury annual CPI projections" (per clause 110.2). Similarly, education allowances for junior medical officers was also adjusted by the same method (clause 113.2).

[17] ASMOF and the Territory have agreed that the MEE allowance in the Determination will be adjusted by the same method as the 2022 Agreement.

[18] The AMA argued that the allowance should be adjusted by the ABS Consumer Price Index (CPI) for the Education and Health sub-indexes for Canberra or, if discontinued, the most comparable ABS index. The AMA argued that the MEE must move in line with the real costs of professional education and clinical training to remain effective, rather than the general household inflation or wage growth.

[19] The link between education expenses for medical practitioners and the ABS' health CPI data is not immediately obvious. The health CPI data collected by the ABS measures changes in the price of health services. Even though medical practitioners covered by Determination are providing health services that may or may not affect the ABS' data, we are not satisfied that the MEE allowance should be adjusted by reference to changes in the price of health services.

[20] The AMA submitted that the Education CPI indexes measure changes in the cost of course and tuition fees charged by tertiary and professional education providers but also submitted that medical education expenses for Staff Specialists could include other expenses such as simulation-based training, college CPD modules and conference participation.

[21] We are not satisfied that the AMA has made out a proper case to change how the annual cap for medical education expenses is indexed.

[22] For the reasons given above and in our earlier decision, we will make the Determination in the terms published separately today.

[23] As noted above, clause 4.3 of the Determination requires bargaining for a replacement agreement to commence on 31 August 2025. This is an obvious defect in the determination because the date by which bargaining was to commence has now passed.

[24] On 24 July 2025, bargaining commenced in relation to common core provisions for replacement agreements covering the Territory and all other ACTPS employees. This followed the commencement of bargaining with ACTPS unions on 18 July 2025. Bargaining for the next MPEA should commence as soon as reasonably practicable. In the circumstances, clause 4.3 will be varied to replace 'eight' with 'four'. The practical effect of this change is that bargaining for a replacement agreement will now be required to commence on Monday 30 November 2025.

[25] We have separately published our Order varying clause 4.3 of the Determination, effective today.

[26] We make the following orders effective today:

1. Pursuant to s.269 of the Fair Work Act 2009 we make the ACT Public Sector Medical Practitioners Workplace Determination 2025.

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 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

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