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

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.

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.

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.

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.

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

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.

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.”

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…

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 4261
Decision Date: 3 DECEMBER 2024

CaseChat Overview and Summary

The case involved an application by the Geelong Grammar School for approval of a variation to the Quayclean Enterprise Agreement. The application was made under section 218A of the Fair Work Act 2009, seeking to correct or amend obvious errors in the agreement. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the proposed changes to the Quayclean Enterprise Agreement constituted corrections of obvious errors as required by section 218A. This involved assessing the nature and extent of the errors and determining whether they were indeed obvious, and whether the proposed changes were appropriate corrections. Additionally, the Commission needed to consider whether the changes complied with the requirements of the Fair Work Act.

The Fair Work Commission found that the proposed changes were indeed corrections of obvious errors in the original agreement. The errors were identified as discrepancies in the classification and rates of pay for certain employees, which were not aligned with the intended terms of the agreement. The Commission held that these errors were clear and unambiguous, and that the proposed changes effectively corrected them. Furthermore, the Commission was satisfied that the changes complied with the relevant provisions of the Fair Work Act. Therefore, the application for approval of the variation was granted.

As a result of the Commission's decision, the Geelong Grammar School was authorised to implement the corrected Quayclean Enterprise Agreement. The changes to the agreement, which corrected the obvious errors, were approved and could be put into effect.

Orders