BlueCross Community and Residential Care Services Group T/A BlueCross

[2024] FWCA 639

[2024] FWCA 639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BlueCross Community and Residential Care Services Group T/A BlueCross

(AG2023/5519)

BLUECROSS RESIDENTIAL AND HOMECARE, ANMF AND HWU ENTERPRISE AGREEMENT 2024

Aged care industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 19 FEBRUARY 2024

Application for approval of the BlueCross Residential and HomeCare, ANMF and HWU Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the BlueCross Residential and HomeCare, ANMF and HWU Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BlueCross Community and Residential Care Services Group T/A BlueCross. The Agreement is a single enterprise agreement.

1. The Employer has provided the written undertakings 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 terms of the Agreement.

1. Subject to the undertakings, 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 Health Services Union (HSU) and the Australian Nursing and Midwifery Federation (ANMF) being the 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 HSU and ANMF support approval of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 28.8(d);

·           Clause 38.2(b);

·           Clause 47.2;

·           Clause 58.4(a);

·           Clause 56.4(c);

·           Clause 29.7(a); and

·           Clause 61.1(a).

However, noting clause 6.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 February 2024. The nominal expiry date of the Agreement is 31 December 2025.

Variation

1. A Form F1 was simultaneously lodged with the Agreement, which sought to vary provisions of the Agreement pursuant to sections 217 and/or 218A of the Act (the Form).

1. The Form highlighted errors within the Agreement that had been identified by the Applicant as outlined in Q2.2 of the Form (the Amendments).

1. The HSU and ANMF were consulted regarding the Amendments sought and have indicated their support to the application to amend.

1. I am satisfied that s.218A applies to the Amendments sought at paragraph 8 of this Decision.

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) 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.”

1. As has been noted in recent decisions of the Commission,[1] s.218A is akin to the slip rule 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. 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 to correct them.

1. 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.

1. The Applicant submits that the amendments address typographical errors, including incorrect shift allowances that were calculated in Appendix A. I am satisfied that the typographical errors in the Agreement outlined at paragraph 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 HSU and ANMF have been consulted about the amendments and support them. There are no reasons not to exercise my discretion and good reasons to do so. The errors identified at paragraph 8, will be amended as per the order.

Order

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

1.   Replacing Appendix A of the Agreement with the amended Appendix noting the correct calculations; and

2.   On page 113 of the Agreement at clause 3, the title be amended to read “Leisure and Lifestyle Assistant Grade 3 (Wage Skill Group 8)”. 

1. The variations pursuant to s.218A above will operate from 26 February 2024.

1. The Applicant has simultaneously submitted a copy of the Agreement with the variations listed at paragraph 8. The Agreement, as varied, will be published with this Decision.

DEPUTY PRESIDENT

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).

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