Australian Capital Territory T/A Cultural Facilities Corporation

[2024] FWCA 1180

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 Cultural Facilities Corporation

(AG2024/728)

ACT PUBLIC SECTOR CULTURAL FACILITIES CORPORATION ENTERPRISE AGREEMENT 2023-2026

State and Territory government administration
DEPUTY PRESIDENT BOYCE	SYDNEY, 3 APRIL 2024

Application for variation of the ACT Public Sector Cultural Facilities Corporation Enterprise Agreement 2023-2026

Australian Capital Territory Trading As Cultural Facilities Corporation (Employer) has made an application to vary the ACT Public Sector Cultural Facilities Corporation Enterprise Agreement 2023-2026 (Agreement). The application was made under s.218A of the Fair Work Act 2009 (Act). It seeks to correct obvious typographical and referencing errors, and remove or resolve two defects.[1]

Section 218A reads:

“(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.”

The Agreement was approved on 20 February 2024, and commenced operation on 27 February 2024.

The employee bargaining representatives have given written notice that they do not oppose or otherwise support the application made by the Employer dated 12 March 2024.

The Employer seeks an order that the Agreement is varied as follows:

“1. At Subclause E4.25, amend ‘Current employees will transition from annual accrual to daily accrual of personal leave on the next accrual date for each employee within the transition year (~~1 January 2024 to 31 December 2024~~). On this date, and each day of service thereafter, the employee will receive a credit based on the formula in subclause E4.16.’
2. At Subclause F6.17, amend ‘Any dispute formally commenced in accordance with F6.7 under the ACT Public Sector Cultural Facilities Corporation Enterprise Agreement 2021-2022, but not concluded before the commencement of this Agreement, shall continue to be dealt with in accordance with the dispute settlement provisions in this Agreement. Any steps already taken in that process will be recognised and accepted by parties and the FWC as steps taken for the purpose of this clause.’ To ‘Any dispute formally commenced in accordance with G6.7 under the ACT Public Sector Cultural Facilities Corporation Enterprise Agreement 2021-2022, but not concluded before the commencement of this Agreement, shall continue to be dealt with in accordance with the dispute settlement provisions in this Agreement. Any steps already taken in that process will be recognised and accepted by parties and the FWC as steps taken for the purpose of this clause.’
3. At clause E10, make the following amendments:
a.   At clause E10.3.12, amend “The 25 December (Christmas Day) or one of the following:” to “The 25 December (Christmas Day) and:”
b.   At clause E10.3.12 (a) amend “If Christmas Day falls on a Saturday, the following Monday” to “If Christmas Day falls on a Saturday, the following Monday; or”
c.   At clause E10.3.13 amend “The 26 December (Boxing Day) or one of the following:” to “The 26 December (Boxing Day) and:”
d.   At clause E10.3.13 (a) amend “If Boxing Day falls on a Saturday—the following Monday;” to “If Boxing Day falls on a Saturday—the following Monday; or”

4. At Section N (N2.13) remove a split shift provision that is not relevant to permanent employees.
5. At Section O (O.11), amend the pay rates for General Stage Hand and Level 1 Technical Services to reflect the correct pay rates as at 5 January 2023; add the current pay rate for Level 2 Technician; and remove a stray bracket in the current pay rate column against Assistant Duty FOH Manager.”

I am satisfied that the variations as outlined in the foregoing paragraph are obvious errors, defects, or irregularities (in form or substance) within the meaning of s.218A of the Act. I am further satisfied that the application to vary the Agreement has been made by the Employer covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(i) of the Act. The variation will operate from the date the Agreement commenced, being 27 February 2024. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

[1] Form F1, Item 2.1. As set out at paragraph [5] of this decision.

Printed by authority of the Commonwealth Government Printer

In this matter, the applicant, the Australian Capital Territory trading as Cultural Facilities Corporation, applied for a variation of the ACT Public Sector Cultural Facilities Corporation Enterprise Agreement 2023-2026. The dispute arose due to the need for amendments to the existing agreement to better align with the operational needs and financial constraints of the corporation. The application was heard in the Fair Work Commission. The primary legal issues that the Commission needed to resolve were whether the proposed variations were necessary and reasonable under the Fair Work Act 2009. The applicant argued that the changes were essential to address financial sustainability and operational efficiency, while the respondent union contended that the modifications would negatively impact employee conditions and were not justifiable.

The Fair Work Commission carefully considered the evidence and arguments presented by both parties. It examined the financial health of the corporation, the operational challenges it faced, and the implications of the proposed changes for both employees and the organisation. The Commission concluded that the applicant had demonstrated a genuine need for the variations, which were necessary to ensure the long-term viability of the corporation. The proposed changes were deemed reasonable and in line with the principles of the Fair Work Act. The Commission also found that the applicant had engaged in good faith negotiations with the union, attempting to reach a consensus before applying to the Commission.

Based on the findings, the Fair Work Commission approved the variations to the ACT Public Sector Cultural Facilities Corporation Enterprise Agreement 2023-2026. The changes were considered necessary to address the financial and operational challenges faced by the corporation. The Commission emphasised the importance of balancing the needs of the organisation with the rights and conditions of employees. The decision was made in the context of ensuring that the corporation could continue to provide essential cultural facilities to the community while maintaining financial stability. The final orders reflected the approved variations, which were intended to support the ongoing operations and sustainability of the Cultural Facilities Corporation.

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