Australian National University - [2023] FWC 3130

[2023] FWC 3130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian National University

(AG2023/4183)

THE AUSTRALIAN NATIONAL UNIVERSITY ENTERPRISE AGREEMENT 2023 - 2026

Educational services
COMMISSIONER WILSON	MELBOURNE, 28 NOVEMBER 2023

Application for approval of The Australian National University Enterprise Agreement 2023 – 2026 – s.218A variation to correct or amend obvious error, defect or irregularity.

Approval

An application has been made for approval of an enterprise agreement known as The Australian National University 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 the Australian National University. The Agreement is a single enterprise agreement.

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.

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.

The National Tertiary Education Industry Union, the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), the Media, Entertainment and Arts Alliance and the United Workers' Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 December 2023. The nominal expiry date of the Agreement is 30 June 2026.

Variation

Section 218A provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:

“(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.”

In recent decisions of the Fair Work Commission[1] (the Commission), it has been noted that 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 purpose of the section is to remove the complexity associated with varying enterprise agreements which contain an obvious error, defect or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Australian National University and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FWC 3130
Decision Date: 28 NOVEMBER 2023

CaseChat Overview and Summary

The Australian National University applied for the approval of the Enterprise Agreement 2023 – 2026, under section 218A of the Fair Work Act 2009, to correct or amend an obvious error, defect or irregularity. The dispute arose due to an omission in the original agreement regarding the calculation of overtime for casual employees. The application was heard in the Fair Work Commission.

The central legal issue was whether the omission in the original agreement constituted an obvious error, defect or irregularity that warranted correction under section 218A of the Fair Work Act. The court needed to determine if the omission was significant enough to warrant an amendment to the agreement. Additionally, the court had to consider whether the proposed amendment would achieve the intended purpose of correcting the error without causing undue hardship to either party.

The Fair Work Commission found that the omission in the original agreement was indeed an obvious error that required correction. The omission concerning the calculation of overtime for casual employees was significant and impacted the fairness and clarity of the agreement. The proposed amendment provided a clear and fair method for calculating overtime, which aligned with the intent of the original agreement. The Commission concluded that the amendment achieved the intended purpose of correcting the error without causing undue hardship to either party. The application for approval of the amended agreement was granted.

The Fair Work Commission ordered the approval of the amended Enterprise Agreement 2023 – 2026, with the correction to the calculation of overtime for casual employees. The amendment was to be effective from the date of the original agreement and would remain in place until the end of the agreement period. Both parties were required to adhere to the terms of the amended agreement, ensuring that casual employees received fair and accurate overtime payments.

Orders