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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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

1. 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.”

1. 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 irregularity by creating a simpler process for corrections to be made.

1. Before an amendment under s.218A can be made, the Commission must first be satisfied that an obvious error, default or irregularity (whether in substance or form) exists. If it is found that such an error, default of irregularity exists, the Commission may (not must) vary the agreement.

1. The Applicant and the National Tertiary Education Industry Union jointly make an application under s.218A of the Act to correct or amend minor typographical errors in the Agreement.

1. The Applicant submits that:

“Clause 14.19 contains an incorrect cross reference to clause 14.14, which should refer to clause 14.15 (which prescribes the minimum engagement period for casual staff being referred to in clause 14.19);

Schedule 4.6 contains an incorrect reference to clause 67 which should be deleted. The words "in accordance with clause 67 (First Aid)" have no meaning and should be struck out because clause 67 does not provide any procedure to designate a Chief Warden;

Clause 70.17 inadvertently omits the word 'Officer' from the reference to 'Chief People Officer'; and

In clause 56.5, the reference to this "this Agreement", was intended to be a reference to the existing agreement - ie the The Australian National University Enterprise Agreement 2017 – 2021’.  This reflects that the bargaining parties had agreed to continue the operation of the existing provision ie that clause 56.5 (which provides severance entitlements for fixed term and continuing (contingent funded) staff in accordance with the provisions under The Australian National University Enterprise Agreement 2013 – 2016) only applies to staff members with existing employment contracts entered into prior to The Australian National University Enterprise Agreement 2017 – 2021. To avoid any confusion, the University seek a correction to this clause deleting ‘this Agreement’ and replacing it with ‘The Australian National University Enterprise Agreement 2017 – 2021’, reflecting the agreed intention of the bargaining parties.  For completeness, as set out in the F17A, once this issue was identified, staff were advised on 18 October 2023, well prior to the vote, that the NTEU and ANU would be making a joint application to the Fair Work Commission at the time of approval to make the above correction.”[2]

1. I sought the views of the bargaining representatives on the s.218A application. No bargaining representatives objected to the s.218A application.

1. For the reasons set out above, I am satisfied that the error in clause 14.19, Schedule 4.6, clause 70.17 and clause 56.5 were errors within the meaning of s.218A(1) 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.

1. The variation sought will operate from the date the Agreement commences operation, 5 December 2023.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied as follows:

1.The cross reference to “clause 14.14” in clause 14.19 is varied to “clause 14.15”;

2.The words “in accordance with clause 67 (First Aid)” in Schedule 4.6 are deleted;

3.The word “Officer” is inserted into Clause 70.17 into the reference to “Chief People Officer”;

4.In clause 56.5, the words “this Agreement” are deleted and replaced with “The Australian National University Enterprise Agreement 2017 – 2021”.

1. The variation will operate from 5 December 2023. The published Agreement will contain the corrections described in the above order.

COMMISSIONER

Annexure A

[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

[2] Enterprise Agreement lodgment email to Fair Work Commission, 9 November 2023.

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