Australian Capital Territory T/A Cultural Facilities Corporation

[2024] FWCA 1180

[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

1. 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]

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.”

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

1. 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.

1. 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.”

1. 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

<AE523594  PR773070>