Australian Capital Territory T/A Office of the Legislative Assembly
[2023] FWCA 2600
•17 AUGUST 2023
| [2023] FWCA 2600 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Australian Capital Territory T/A Office of the Legislative Assembly
(AG2023/2601)
ACT PUBLIC SECTOR OFFICE OF THE LEGISLATIVE ASSEMBLY ENTERPRISE AGREEMENT 2022-2026
| State and Territory government administration | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 17 AUGUST 2023 |
Application for approval of the ACT Public Sector: Office of the Legislative Assembly Enterprise Agreement 2023-2026
Approval
An application has been made for approval of an enterprise agreement known as the ACT Public Sector: Office of the Legislative Assembly 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 T/A Office of the Legislative Assembly. The Agreement is a single enterprise agreement.
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.
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.
I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.
The Community and Public Sector Union (CPSU) 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 CPSU support approval of the Agreement.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 August 2023. The nominal expiry date of the Agreement is 31 March 2026.
Variation
A Form F1 was simultaneously lodged with the Agreement, which sought to vary provisions of the Agreement pursuant to sections 217 and 218A of the Act (the Form).
The Form highlighted errors within the Agreement that had been identified by the Applicant as follows:
1. Advanced First Aid in Annex C of the Agreement amend condition 1 ‘head of service’ to ‘Clerk’;
2. Advanced First Aid in Annex C of the Agreement amend condition 2 ‘head of service’ to ‘Clerk;
3. Advanced First Aid in Annex C of the Agreement amend ‘Per Fortnight (2)’ to ‘Payment’;
4. Advanced First Aid in Annex C of the Agreement amend ‘Per Fortnight (3)’ to ‘Payment’;
5. Community Language Special Conditions in Annex C of the Agreement amend 2. ‘head of service’ to ‘Clerk’;
6. Community Language Special Conditions in Annex C of the Agreement amend 3. ‘head of service’ to ‘Clerk’;
7. Community Language Special Conditions in Annex C of the Agreement amend 4. ‘head of service’ to ‘Clerk’; and
8. Community Language Special Conditions in Annex C of the Agreement amend 5. ‘head of service’ to ‘Clerk’
The CPSU was consulted regarding the amendments sought in the Form and have not raised any issues with the Commission.
I am satisfied that s.218A applies to the variations at paragraphs 8.1-8.8 of this Decision.
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.”
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.
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.
The Applicant submits that the amendments seek to address typographical and title errors and that the amendments will not result in any detriment to any of the employees covered by the Agreement. The Applicant further submits that the amendments sought in paragraphs 8.3 and 8.4 seek to amend an error in which the daily rates for the allowance are listed but are incorrectly referred to as fortnightly rates.
I am satisfied that the typographical and title errors in the Agreement outlined at paragraphs 8.1-8.8 of this Decision are obvious errors. 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 CPSU have been consulted with on the amendments sought by the Applicant. There are no reasons not to exercise my discretion and good reasons to do so. The errors identified at paragraphs 8.1-8.8, will be amended as per the order.
Order
I order, pursuant to s.218A of the Act, that the Agreement be varied as follows:
1. At Advanced First Aid in Annex C of the Agreement, replace condition 1 ‘head of service’ with ‘Clerk’;
2. At Advanced First Aid in Annex C of the Agreement, replace condition 2 ‘head of service’ with ‘Clerk;
3. At Advanced First Aid in Annex C of the Agreement, replace ‘Per Fortnight (2)’ with ‘Payment’;
4. At Advanced First Aid in Annex C of the Agreement, replace ‘Per Fortnight (3)’ with ‘Payment’;
5. At Community Language Special Conditions in Annex C of the Agreement, replace Special Conditions 2 ‘head of service’ with ‘Clerk’;
6. At Community Language Special Conditions in Annex C of the Agreement, replace Special Conditions 3 ‘head of service’ with ‘Clerk’;
7. At Community Language Special Conditions in Annex C of the Agreement, replace Special Conditions 4 ‘head of service’ with ‘Clerk’; and
8. At Community Language Special Conditions in Annex C of the Agreement, replace Special Conditions 5 ‘head of service’ with ‘Clerk’;
The variations pursuant to s.218A above will operate from 24 August 2023.
The Applicant has simultaneously submitted a copy of the Agreement with the variations listed at paragraph 16. The Agreement, as varied, will be published with this Decision.
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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