Australian Nursing and Midwifery Federation

[2025] FWCA 1100

[2025] FWCA 1100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Australian Nursing and Midwifery Federation

(AG2025/451)

JALLARAH HOMES INC NURSES (AGED CARE) & AMNF ENTERPRISE AGREEMENT 2023

Aged care industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 31 MARCH 2025

Application for variation of the Jallarah Homes Inc Nurses (Aged Care) & AMNF Enterprise Agreement 2023

1. The Australian Nursing and Midwifery Federation (the Applicant) has made an application to the Fair Work Commission to vary an agreement to correct or amend errors, defects or irregularities, pursuant to s.218A of the Fair Work Act 2009 (Cth) (the FW Act). The application seeks an order pursuant to s.218A that varies or corrects Schedule 1 of the Jallarah Homes Inc Nurses (Aged Care) & AMNF Enterprise Agreement 2023[1] (the Agreement).

1. The Agreement was approved by the Commission on 13 January 2025[2] and commenced operation on 20 January 2025. The Applicant submits that the Agreement contains errors, defects or irregularities, the details of which are set out and considered below. Jallarah Homes Incorporated (the Employer) consents to the application.

Statutory Provisions

1. 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) Bill 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity, relevantly 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. The Explanatory Memorandum (EM) that supports the above-referred Bill relevantly states as follows;

772. This part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:

·simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and

·provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.

Consideration

1. The variation to the Agreement seeks to remove the existing Schedule 1 from the Agreement and replace it with the correct Schedule 1. Schedule 1 provides the pay rates for classifications covered by the Agreement.

1. The Applicant submitted that the table that had been included in the version of the Agreement which was filed in and subsequently approved by the Commission included some incorrect rates of pay. The Applicant submitted that the Employer had been the one to identify the error and bring it to the Applicant’s attention, and that the Schedule 1 that had been included in the version of the Agreement which was filed was not the Schedule 1 that had been agreed to by the employees. The error meant that some of the rates in the approved agreement were lower than those that had been agreed.

1. The Employer agreed with the Applicant’s submissions and supports the application to vary the Agreement.

Conclusion

1. I am satisfied that the application to vary the Agreement has been made by an employee organisation covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(iii) of the Act.

1. For the reasons set out above, I am satisfied on the basis of the material before the Commission that the inclusion of the incorrect version of Schedule 1 in the Agreement is an obvious error within the meaning of s 218A(1) of the Act. In these circumstances I am also satisfied that it is appropriate for the Commission to vary the Agreement to remove the current Schedule 1 and replace it with the correct version as sought by the Applicant. This will ensure that the Agreement reflects what was agreed between the relevant employees, the Employer, and the Applicant.

1. The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

1. The Agreement as varied sought will operate from 31 March 2025.

DEPUTY PRESIDENT

<AE527572  PR785712>

[1] AE527572.

[2] A correction which amended a typographical error in the name of the Agreement as referred to in the approval decision was subsequently published on 14 January 2025.

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