Anthony Shufflebotham

[2024] FWCA 4261

[2024] FWCA 4261

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Anthony Shufflebotham

(AG2024/3034)

GEELONG GRAMMAR SCHOOL QUAYCLEAN ENTERPRISE AGREEMENT

Cleaning services
COMMISSIONER JOHNS	MELBOURNE, 3 DECEMBER 2024

Application for approval of the Geelong Grammar School Quayclean Enterprise Agreement – s.218A variation to correct or amend obvious errors

Approval

1. An application has been made for approval of an enterprise agreement known as the Geelong Grammar School Quayclean Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Anthony Shufflebotham. The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The United Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 December 2024. The nominal expiry date of the Agreement is 30 June 2026.

Variation

1. The Agreement lodged appeared to contain several cross-referencing errors. On 14 November 2024, the Applicant made an application pursuant to s.218A of the Act to correct them.

1. Section 218A, which came into effect on 7 December 2022, is as follows:

“218A Variation of enterprise agreements to correct or amend errors, defects or irregularities

(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; or
(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.”

1. As has been noted in recent decisions[1] of the Commission, 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.

1. 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 error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

1. I am satisfied the cross-referencing errors in the Agreement, as confirmed by the parties, are obvious errors. While s.218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied the amendments should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the errors are readily identified, as are the corrections needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The cross-referencing errors will be amended as per the order below.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to correct the obvious errors as follows:

1. By deleting “28” where it appears in clause 27 and replacing it with “27”.

2. By deleting “33” where it appears in clause 30 and replacing it with “30”.

3. By deleting “Clause 32.5 below” where it appears in clause 30 and replacing it with “Clause 30.5 below”.

4. By deleting “clause 32.1” where it appears in clause 30 and replacing it with “clause 30.1”.

5. By deleting “34” where it appears in clause 32 and replacing it with “32”. 

1. The variation will operate from 3 December 2024.

COMMISSIONER

Annexure A

[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

Printed by authority of the Commonwealth Government Printer

<AE527025  PR781951>