Australian Capital Territory T/A ACT Public Sector

[2024] FWCA 2251

[2024] FWCA 2251

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 T/A ACT Public Sector

(AG2024/1947)

ACT PUBLIC SECTOR SUPPORT SERVICES ENTERPRISE AGREEMENT 2023-2026

State and Territory government administration
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 3 JULY 2024

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

1. The Australian Capital Territory (the Applicant) has applied pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the ACT Public Sector Support Services Enterprise Agreement 2023-2026 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by the Commission on 19 January 2024 and commenced operation on 26 January 2024. The Applicant is the sole employer covered by the Agreement. The Agreement covers the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Construction, Forestry and Maritime Employees Union (CFMEU), the Community and Public Sector Union (CPSU) and the Health Services Union (HSU). The Applicant submits that the amendment has been consulted with all the union representatives.

1. The Applicant seeks to amend Annexure A of the Agreement so that the Allied Health Assistant Level 2/3 Broadband commences from the commencement of the Agreement, instead of from 6 June 2024. Following issues raised by my chambers, the Applicant clarified that it sought to add an additional column in Annexure A, to allow for a new rate of pay for Allied Health Assistant Level 2/3 Broadband employees, from the commencement date of the Agreement.

Consideration

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. I am satisfied that s.218A applies to the variation at paragraph 3 of this Decision.

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. The Applicant submits that in accordance with clause N3.3 of the Agreement, the intention was for the new broad banding structure to come into effect on the commencement of the Agreement. It submits that Annexure A of the Agreement does not correctly reflect the transitional arrangements of Section N3 and an additional “From Commencement of the Agreement” column is required to clarify the change in movements, pay increases and to ensure the pay increase at 6 June 2024 occurs separately to the transitional arrangements on commencement of the Agreement. The Applicant further submits that the amendment will not result in detriment to any employees covered by the Agreement.

1. On 6 June 2024, my chambers wrote to all the union representatives to seek their views on the proposed amendments. The CPSU advised that they have no objection to the proposed amendment.

1. I am satisfied that the error outlined at paragraph 3 of this Decision is an obvious error. 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 corrections are 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 errors identified at paragraphs 3, will be amended as per the order.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to replace page 173 of the Agreement with Annexure A.

1. The variations pursuant to s.218A above will operate from 26 January 2024.

DEPUTY PRESIDENT

[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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