Australian Nursing and Midwifery Federation

[2023] FWCA 944

[2023] FWCA 944

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

(AG2023/827)

JOHNSON STENNER AGED CARE ENTERPRISE AGREEMENT 2021

Aged care industry
COMMISSIONER SIMPSON	BRISBANE, 29 MARCH 2023

Application for variation of the Johnson Stenner Aged Care Enterprise Agreement 2021

1. Australian Nursing and Midwifery Federation (the Applicant / ANMF) made an application pursuant to s.218A of the Fair  Work  Act  2009 (the  Act)  to  vary  the Johnson Stenner Aged Care Enterprise Agreement 2021 (the  Agreement)   to  correct  or  amend  an  error,  defect  or irregularity in the Agreement.

1. The  Agreement  was  approved  by  the  Commission  on  7 February 2022  and commenced  operation  on  14 February 2022. The ANMF is an employee organisation covered by the Agreement.

1. The Applicant submitted that the Agreement contains an obvious error at sub-clause 27.2(b). Clause 27.2 provides the following:

“27.2. Part time employees

(a) Subject to clause 27.1(a)(i),(ii),(iii) all time worked by part-time employees in excess of 38 hours per week or 76 hours per fortnight will be paid for at the rate of time and a half for the first two hours and double time thereafter, except that on Saturday and Sundays where such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.

(b) Nurses:

All time worked by part-time employees in excess of the rostered daily ordinary full-time hours will be overtime and will be paid as prescribed in clause 21.7(a).”

The Applicant submits there is clear a typographical error regarding the reference to “clause 21.7(a)” which the Applicant seeks to be varied as follows:

“(b) Nurses:

All time worked by part-time employees in excess of the rostered daily ordinary fulltime hours will be overtime and will be paid as prescribed in clause 21.7(a) 27.1(a).”

1. The Applicant further elaborated that the reference to clause 21.7(a) is clearly an error because:

a. the overtime rates in the Agreement are prescribed at clause 27.1(a);

b. there is no clause 21.7(a) in the agreement; and

c. clause 21.7 and 27.1 are numerically similar, and this is likely how the error was made.

1. Johnson Stenner Aged Care Pty Ltd (the Respondent / the Employer) did not object to the Application.

Relevant Legislation

1. Section 218A provides as follows:

   “218A Variation of enterprise agreements to correct or amend errors, defects or irregularities

   (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.”

2. In the present case, the obvious error is the reference to clause 21.7(a), as such, a typographical error would, in my view, fall within the scope of s.218A(1).

Conclusion

[12] For the reasons set out above, I am satisfied that the error contained in sub-clause 27.2(b) is an error 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 ANMF covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(iii) of the Act. The variation sought will operate from 14 February 2022. An order giving effect to this decision will be separately issued.

COMMISSIONER

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