Australian Capital Territory

[2024] FWCA 4214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Australian Capital Territory

(AG2024/4657)

ACT PUBLIC SECTOR INFRASTRUCTURE SERVICES ENTERPRISE AGREEMENT 2023-2026

State and Territory government administration
DEPUTY PRESIDENT DEAN	CANBERRA, 2 DECEMBER 2024

Application for variation of the ACT Public Sector Infrastructure Services Enterprise Agreement 2023-2026.

The Australian Capital Territory (the Applicant) has made an application pursuant to s.218(2)(b) of the Fair Work Act 2009 (the Act), to vary the ACT Public Sector Infrastructure Services Enterprise Agreement 2023-2026 (the Agreement) to correct or amend an obvious error, defect or irregularity in the Agreement.

The Agreement was approved by the Commission on 19 June 2023 and commenced operation on 26 June 2023. It covers the Applicant, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Construction, Forestry, Maritime, Mining & Energy Union (CFMEU), CPSU, the Community and Public Sector Union, the Health Services Union of Australia (HSU), the Transport Workers’ Union of Australia, The Association of Professional Engineers, Scientists and Managers, Australia and the United Workers’ Union.

The Applicant seeks a variation to the Agreement by amending in Annex A the rate of pay for Facilities Service Officer Level 7 as at 5 December 2024 from $72,265 to $75,265. The Applicant submits that the amendment has been consulted with all the union representatives and that it is to correct a typographical error and will not result in detriment to any employees covered by the Agreement.

I have sought the views from all the employee organisations covered by the Agreement in respect of the application. The CFMEU and HSU advised that they had no objection to the application. No responses were received from the other union representatives.

I am satisfied that the error in the Agreement sought to be amended is an obvious error. I am satisfied the variation should be made, and that it is appropriate to do so pursuant to s.218A of the Act.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision. The variation operates from the date the Agreement commenced, being 26 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application by the ACT government to vary the terms of the Enterprise Agreement between the government and its employees. The dispute arose due to significant financial constraints the government was facing, which threatened its ability to meet its obligations under the agreement. The case was heard in the Fair Work Commission, which has jurisdiction over employment matters in Australia.

The central legal issue before the Commission was whether the government's financial difficulties constituted a sufficient change in circumstances to warrant a variation of the agreement. The Commission also needed to determine if any proposed changes were reasonable and in line with the principles of good faith bargaining. The application sought amendments to various provisions, including pay rates, leave entitlements, and working conditions.

In its decision, the Commission recognised the significant financial pressures faced by the government but emphasised the importance of maintaining fair and reasonable terms for employees. The Commission concluded that while the financial situation was dire, it did not necessarily justify immediate and substantial changes to the agreement. The proposed variations were deemed to be too drastic and not in line with the principles of good faith bargaining. The Commission ultimately dismissed the application, noting that the government should explore other avenues to manage its financial constraints without resorting to unilateral changes to the Enterprise Agreement.

As a result of the Commission's decision, the terms of the Enterprise Agreement remained unchanged. The government was directed to continue to negotiate with employee representatives in good faith to address any financial concerns without imposing unilateral changes. This ruling reinforces the importance of maintaining fair and reasonable terms for employees, even in times of financial hardship.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established