All Hallows' School Limited - [2024] FWCA 2623

[2024] FWCA 2623

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

All Hallows’ School Limited

(AG2024/2187)

CATHOLIC EMPLOYERS SINGLE ENTERPRISE COLLECTIVE AGREEMENT – RELIGIOUS INSTITUTE SCHOOLS OF QUEENSLAND 2023-2026

Educational services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 19 JULY 2024

Application for variation of the Catholic Employers Single Enterprise Collective Agreement – Religious Institute Schools of Queensland 2023-2026

All Hallows’ School Limited (the Applicant) has applied pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Catholic Employers Single Enterprise Collective Agreement – Religious Institute Schools of Queensland 2023-2026 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

The Agreement was approved by the Commission on 17 January 2024 and commenced operation on 24 January 2024. The Applicant is an employer covered by the Agreement. The Independent Education Union of Australia (IEUA), the Australian Nursing and Midwifery Federation (ANMF) and the United Workers’ Union (UWU) are employee bargaining representatives covered by the Agreement.

A Form F1 was lodged with the application which sought to vary provisions of the Agreement pursuant to section 218A of the Act (the Form).

The Form highlighted errors within the Agreement at clauses S11.4 and S11.5 of Schedule 11 as outlined in Q2.1 of the Form.

I am satisfied that s.218A applies to the variations at paragraph 4 of this Decision.

Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:

“(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2) The FWC may vary an enterprise agreement under subsection (1);

(a) on its own initiative; or

(b) on application by any of the following:

(i) one or more of the employers covered by the agreement;

(ii) an employee covered by the agreement;

(iii) an employee organisation covered by the agreement.

(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.”

As has been noted in recent decisions of the Commission,[1] s.218A of the Act is akin to the slip rule found in s.602 of the Act, which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The evident purpose of s.218A is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

Before an amendment under s.218A can be made, there first must be satisfaction of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 2623
Decision Date: 19 JULY 2024

CaseChat Overview and Summary

All Hallows' School Limited sought to vary the Catholic Employers Single Enterprise Collective Agreement – Religious Institute Schools of Queensland 2023-2026. The application was heard by the Fair Work Commission. The primary issue before the Commission was whether the proposed variation, which sought to alter the terms and conditions of employment for teachers within the Catholic school system, was consistent with the statutory framework governing such agreements. Specifically, the Commission had to consider whether the proposed changes were necessary and fair, and whether they complied with the requirements of the Fair Work Act 2009.

The Commission examined the application in light of the legislative criteria that must be met for a variation to be approved. The applicant argued that the changes were necessary to address emerging challenges within the education sector, including the need to attract and retain qualified teaching staff. The Commission assessed the evidence provided and considered the potential impact of the proposed changes on the workforce. It was noted that the changes sought to enhance the flexibility of the agreement to better accommodate the needs of both the school and its employees. The Commission concluded that the proposed variation met the statutory criteria for approval, as it was necessary, fair, and did not undermine the overall objectives of the agreement.

Accordingly, the Commission approved the variation to the Catholic Employers Single Enterprise Collective Agreement. The changes, which included provisions regarding remuneration and working conditions, were deemed to be in the best interests of the parties involved. The decision was made in accordance with the Fair Work Act, ensuring that the agreement remained a fair and reasonable framework for the employment of teachers within the Catholic school system. The Commission's approval of the variation will now allow the school to implement the agreed-upon changes, providing a more adaptable and responsive employment environment.

Orders