Australian Capital Territory Government T/A ACT Education Directorate

Case •

[2023] FWCA 2456

•

14 AUGUST 2023
[2023] FWCA 2456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Capital Territory Government T/A ACT Education Directorate

(AG2023/2301)

ACT PUBLIC SECTOR EDUCATION DIRECTORATE (TEACHING STAFF) ENTERPRISE AGREEMENT 2023-2026

Educational services

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 14 AUGUST 2023

Application for approval of the ACT Public Sector Education Directorate (Teaching Staff) Enterprise Agreement 2023-2026

Approval

  1. An application has been made for approval of an enterprise agreement known as the ACT Public Sector Education Directorate (Teaching Staff) Enterprise Agreement 2023-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Capital Territory Government T/A ACT Education Directorate. The Agreement is a single enterprise agreement.

  1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

  1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.

  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 Australian Education Union (AEU) 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 AEU supports approval of the Agreement.

  1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 August 2023. The nominal expiry date of the Agreement is 31 March 2026.

Variation

  1. A Form F1 was simultaneously lodged with the Agreement, which sought an application varying provisions of the Agreement pursuant to section 217 and 218A of the Act (the Form).

  1. The Form highlighted errors and ambiguities within the Agreement that had been identified by the Applicant as follows:

1.   At Clause N1.3 amend ‘As an incentive for recently retired teachers or for teachers to return from long-term leave, these teachers are eligible to seek reimbursement on their return to work for professional teacher registration and Working with Vulnerable People registration costs’ to ‘As an incentive for recently retired teachers or for teachers to return from long-term leave, these teachers are eligible to seek reimbursement on their return to work for professional teacher registration and Working with Vulnerable People registration costs. The head of service may approve reimbursement subject to eligibility;

2.   At Clause N5, clause numbering is incorrect. N5.5 amend to N5.6 and all other subsequent clause numbering and references within clause N5 due to a duplicate clause reference;

3.   At Clause N7, clause numbering is incorrect. N7.3 amend to N7.2 and all other subsequent clause numbering and references within clause N7;

4.   At Clause P6.18 amend ‘Classroom Teachers, SLCs and SLBs alternative settings’ to ‘Classroom Teachers, SLCs and SLBs in alternative settings’;

5.   At Clause T1.1 amend ‘With the exception of directors (SLA) and directors (SLB)’ to ‘With the exception of senior directors (SLA) and directors (SLB);

6.   At Clause U2.2, amend formatting for subclauses;

7.   At Annex A, amend spelling on ‘School’ in reference to School Leader A Level 3; and

8.   At Clause A6.1, remove subclause A6.1.16.

  1. The AEU agrees to the amendments sought in the Form.

Variation pursuant to s.217

  1. For the reasons outlined below, I am satisfied that s.217 applies to the variation at paragraph 9.1.

  1. The Applicant requests a variation at clause N1.3 to insert “The head of service may approve reimbursement subject to eligibility” at the end of the clause.

  1. Section 217 of the Act provides that:

217  Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1)    The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

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

(b)an employee covered by the agreement;

(c)       an employee organisation covered by the agreement.

(2)  If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

  1. The Applicant is the employer covered by the Agreement and I am satisfied that they have authority to make the application.

  1. The Applicant submits that they seek to amend an omission to provide a delegate/authority to approve the reimbursement payment provided for at clause N1.3. The Applicant submits that the amendment to address the ambiguity identified at clause N1.3 will not result in detriment to any employees covered by the Agreement. The AEU supports the amendment.

  1. Based on the material provided, I am satisfied that there is an ambiguity and the variation sought removes that ambiguity.

  1. The application is approved and the Agreement is varied as set out in paragraph 9.1.

Variations pursuant s.218A

  1. I am satisfied that s.218A applies to the variations at paragraphs 9.2-9.8 of this Decision.

  1. 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.”

  1. 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.

  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 that the cross-referencing, spelling and grammatical errors in the Agreement outlined at paragraphs 9.2, 9.3, 9.4, 9.6 and 9.7 of this Decision, and as confirmed by the parties and the AEU, are obvious errors.

  1. In relation to the amendment sought at paragraph 9.5, the Applicant submits that the variation at clause T1.1 with the inclusion of ‘Senior’ was an omission in the position title for the office based School Leader As (SLAs) and submits that the inclusion of ‘Senior’ in the clause does not change the application or eligibility of the provisions in this clause. The AEU agree with this submission. I am satisfied that this is an obvious error.

  1. The Applicant and AEU submit that an amendment is required to clause A6.1 as outlined in paragraph 9.8 of this Decision. The AEU submits that the removal of A6.1.16 is on the basis that the inclusion of that provision was an error by the parties during drafting and would cause no detriment to any party covered by the Agreement. The Applicant further submits that the removal of subclause A6.1.16 relates to internal processes only, are administrative in nature only and do not disadvantage employees or change entitlements in any way. The Applicant further submits that in its current form, clause A6.1 restricts the approval to pay the Employer Initiated Transfer Allowance to one position across the entire ACT Public Service, that position being the Head of Service. I am satisfied that the addition of A6.1.16 at clause A6.1 is an obvious error.

  1. 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. The AEU agree to the amendments sought by the Applicant. There are no reasons not to exercise my discretion and good reasons to do so. The error identified at paragraphs 9.2-9.8, will be amended as per the order at the end of this Decision.

Order

  1. I order, pursuant to s.217 and s.218A of the Act, that the Agreement be varied as follows:

  1. By inserting “The head of service may approve reimbursement subject to eligibility” at the end of Clause N1.3;
  1. Amend clause N5.5 to N5.6 and all other subsequent clause numbering and references within clause N5;
  1. Amend clause N7.3 to N7.2 and all other subsequent clause numbering and references within clause N7;
  1. Amend clause  P6.18 to read ‘Classroom Teachers, SLCs and SLBs alternative settings’ to ‘Classroom Teachers, SLCs and SLBs in alternative settings’;
  1. Amend clause T1.1 to read as follows ‘With the exception of directors (SLA) and directors (SLB)’ to ‘With the exception of senior directors (SLA) and directors (SLB);
  1. Amend the formatting at clause U2.2;
  1. Amend the spelling of “School” in reference to School Leader A Level 3 at Annex A; and
  1. Remove subclause A6.1.16 at clause A6.1.

  1. The variations pursuant to s.217 and s.218A above will operate from 14 August 2023.

  1. The Applicant has simultaneously submitted a copy of the Agreement with the variations listed at paragraph 26. The Agreement, as varied, will be published with this Decision.

DEPUTY PRESIDENT

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).

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