Calvary Health Care Tasmania Limited
[2025] FWCA 3440
•14 OCTOBER 2025
| [2025] FWCA 3440 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Calvary Health Care Tasmania Limited
(AG2025/2673)
CALVARY HEALTH CARE – TASMANIA PRIVATE HOSPITALS –HEALTH PROFESSIONALS AND SUPPORT SERVICES EMPLOYEES ENTERPRISE AGREEMENT 2025
| Health and welfare services | |
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 14 OCTOBER 2025 |
Application for approval of an enterprise agreement – BOOT – agreement approved
Introduction and background
On 11 August 2025, Calvary Health Care Tasmania Limited applied for approval of the Calvary Health Care – Tasmania Private Hospitals – Health Professionals and Support Services Employees Enterprise Agreement 2025, which covers Employees of Calvary who are employed by Calvary in one of the classifications listed in Schedule B to the Enterprise Agreement.
The Employees are health professionals and support services employed by Calvary in its hospital operations in Tasmania. Nurses employed by Calvary in those hospitals are covered by a separate enterprise agreement.
The Employees are covered by the Health Professionals and Support Services Award 2020.
The form F17B declaration filed by Calvary in support of its application for approval of the Enterprise Agreement states that, at the time the Enterprise Agreement was made (28 July 2025), 490 employees were covered by the Enterprise Agreement, 272 employees cast a valid vote, and 196 employees voted to approve the Enterprise Agreement.
The Health Services Union, Tasmania Branch is a bargaining representative for the Enterprise Agreement.
The HSU contends that the Enterprise Agreement is not capable of being approved because it does not pass the better off overall test (BOOT).
Calvary and the HSU have provided detailed written submissions to the Commission about the issues in dispute. I have read and considered those submissions.
Calvary has provided the Fair Work Commission with Undertakings to address a number of concerns raised by the Commission in relation to the Enterprise Agreement. A copy of the Undertakings is contained in Annexure A to this decision.
BOOT
General principles
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (Cth), that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the BOOT requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Enterprise Agreement was made on 28 July 2025.
I must be satisfied that the Enterprise Agreement passes the BOOT before I can approve it.[1] Section 193(1) of the Act provides that an enterprise agreement passes the BOOT if the Commission is satisfied, as at the test time, that each award covered employee, and each reasonably foreseeable employee for the enterprise agreement would be better off overall if the enterprise agreement applied to the employee than if the relevant modern award applied to the employee. The “test time” is when the application for approval of the enterprise agreement is made.[2]
In Armacell Australia Pty and Others the application of the BOOT was explained by the Full Bench in the following manner:[3]
“The BOOT, as the name implies, requires an overall assessment to be made. This requires identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement.”
This principle is now enshrined in s 193A(2) of the Act.
The BOOT is not applied as a line-by-line analysis. It is a global test requiring consideration of advantages and disadvantages to relevant employees.[4] An enterprise agreement may pass the test even if some award benefits have been reduced, as long as overall, those reductions are more than offset by the benefits of the enterprise agreement.[5]
Ultimately the application of the BOOT is a matter that involves the exercise of discretion, and it involves a degree of subjectivity or value judgement.[6]
It is clear from the references to “each … employee” in section 193(1) of the Act that every employee to whom the enterprise agreement will apply, if approved, must be better off overall than if the relevant modern award applied to the employee. It is not enough that a majority or most of the employees to whom the enterprise agreement will apply, if approved, will be better off overall than if the relevant modern award applied.[7]
The Commission must give consideration to any views relating to whether an enterprise agreement passes the BOOT that have been expressed by any of the following:
(a)the employer or employers covered by the agreement;
(b)the award covered employees for the agreement; and
(c)a bargaining representative for the agreement.[8]
Further, the Commission must give primary consideration to a common view (if any) relating to whether the agreement passes the BOOT expressed by all of the following:
(a)the bargaining representative(s) of the employer; and
(b)the bargaining representative(s) of award covered employees for the agreement (other than a bargaining representative that is not an employee organisation).[9]
In considering whether or not an agreement passes the BOOT, the Commission may only have regard to patterns or kinds of work, or types of employment, if they are reasonably foreseeable at the test time. In considering what is reasonably foreseeable, the Commission must have regard to the nature of the enterprise to which the agreement relates.[10]
The Commission must determine whether a particular pattern or kind of work, or type of employment, is reasonably foreseeable for the purposes of s 193A(6) if a view is expressed by any of the following that it is, or is not, reasonably foreseeable:
(a)the employer covered by the agreement;
(b)the award covered employees for the agreement;
(c)a bargaining representative for the agreement.[11]
Consideration of BOOT
Calvary has expressed the view in its form F17B declaration that the Enterprise Agreement does pass the BOOT. I have given consideration to this view.
The HSU has expressed the view that the Enterprise Agreement does not pass the BOOT. I have given consideration to this view.
No common view has been expressed as to whether the Enterprise Agreement passes the BOOT.
The pay rates, at the test time, under the Enterprise Agreement for the Employees compare to the Award as follows:
(a)pay rates for administrative and clerical employees under the Enterprise Agreement are between 4.30% and 51.18% above the Award;
(b)pay rates for health professional employees under the Enterprise Agreement are between 6.46% and 41.89% above the Award;
(c)pay rates for technical employees - theatre under the Enterprise Agreement are between 5.90% and 18.06% above the Award;
(d)pay rates for technical employees – CSSD under the Enterprise Agreement are between 5.72% and 27.55% above the Award;
(e)pay rates for operational employees under the Enterprise Agreement are between 5.72% and 51.18% above the Award; and
(f)pay rates for pastoral care employees under the Enterprise Agreement are between 1.88% (for level employees who are paid $69.24 per hour) and 7.02% above the Award.
Calvary’s form F17B declaration comprehensively sets out the terms of the Enterprise Agreement that are more beneficial than the Award, including entitlements not provided for by the Award, as well as the terms of the Enterprise Agreement that are less beneficial than the Award, including Award entitlements for which the Enterprise Agreement does not provide. Subject to my consideration of the contested matters below, I have had regard to those benefits and detriments in my global assessment of the BOOT.
Part time employment
Clause 10 of the Enterprise Agreement provides:
“Part-time employees
10.1A part-time Employee is an Employee who is engaged to work less than an average of 38 ordinary hours per week and whose hours of work are reasonably predictable. The terms of this Agreement will apply on a pro rata basis to part-time Employees on the basis that the ordinary weekly hours for full-time Employees are 38.
10.2Before commencing part-time employment, Calvary and Employee will agree in writing:
(a) the span of hours that the Employee may be rostered within a fortnight or 4-week period. This span of hours will include which shifts the Employee may be rostered to work; and
(b) the days of the week the Employee may be rostered to work within a fortnight; and
(c) the agreed minimum number of contracted hours to be worked per fortnight or 4-week period.
10.3The terms of the agreement at 10.2 may be varied by agreement and recorded in writing.
10.4Notwithstanding the overtime provisions prescribed at Clause 21 of the Agreement, a part time Employee may agree to work in excess of their rostered ordinary hours at the Ordinary Rate, provided that:
(a) all time worked by a part-time Employee which exceeds the daily ordinary hours limit at clause 16.1(b) or 76 hours per fortnight will be paid at the applicable overtime rate set out in this Agreement.
10.5No part-time Employee shall be directed to work in excess of their rostered ordinary hours at the Ordinary Rate.
10.6Shift and weekend penalties will be applied in accordance with clauses 19 and 20 of this Agreement.
10.7 Minimum work provided
(a) Part-time Employees shall be provided with a minimum of two (2) continuous hours work or, alternatively, paid for a minimum of two (2) hours work on each occasion they are required to attend for work.
10.8 Review of Contracted Hours
(a) Where the Employee is regularly working more than their specified contract hours they may request that their contracted hours are reviewed by Calvary. Calvary will formally respond to the request by the Employee stating the reasons if the request is not agreed to. Calvary will not unreasonably reject the request. Calvary will also take into account that the hours worked in the following circumstances will not be incorporated to any adjustment made:
(i)if the increase in hours is as a direct result of an Employee being absent on leave, such as for example, annual leave, long service leave, maternity leave, workers compensation; and
(ii)if the increase in hours is due to a temporary increase in hours only due, for example, to the specific needs of a patient.
(b) Any adjusted contracted hours resulting from a review by Calvary should, however, readily reflect roster cycles and shift configurations utilised at the Hospital.
10.9 Offering Part time Additional Shifts
(a) Calvary is committed to maximising its permanent workforce (full and part-time staff) whilst ensuring that staffing is in line with occupancy levels. Where shifts become available due to planned leave absences, subject to the arrangements set out at clause 10.2 and 10.3, Calvary will ensure that current part-time staff, who have advised their manager/ supervisor that they are available to work additional shifts at the Ordinary Rate, will be offered additional shifts in the first instance where reasonably practicable. In the circumstances where a part time employee is not available for such additional shifts, or the circumstances are not reasonably practicable including giving rise to an overtime penalty rate, the shifts may be offered to casual staff in the first instance.”
Clause 10 of the Award provides
“10. Part-time employees
10.1 A part-time employee:
(a) is engaged to work less than an average of 38 hours per week; and
(b) has reasonably predictable hours of work.
10.2Before commencing employment, the employer and employee will agree in writing on a regular pattern of work including the:
(a) number of hours to be worked each week;
(b) days of the week the employee will work; and
(c) starting and finishing times each day.
10.3The terms of the agreement in clause 10.2 may be varied by agreement and recorded in writing.”
The HSU submits that clause 10.2 of the Enterprise Agreement is significantly less beneficial than clause 10.2 of the Award:
(a)Clause 10.2 of the Award outlines that the employer and the employee shall agree on a guaranteed pattern of hours before the commencement of employment. In the Award, that pattern of hours must provide for specific working hours and days in a given period. The Award entitlement is critically important for employees, because employees are able to agree to specific working times which may only be varied by written agreement.
(b)In the Enterprise Agreement, Calvary and the employee must only agree upon a ‘span of hours’ that an employee ‘may’ be rostered. In the Enterprise Agreement, part-time employees are deprived of an important entitlement that allows them to agree on a guaranteed and consistent pattern of work with their employer.
(c)The removal of this entitlement has a significant effect on a part-time employee’s job security and the reliability of their hours of employment.
Calvary submits that:
(a)the rostering flexibility under the Enterprise Agreement (in accordance with the referred part-time provisions) has limited effect on the overtime payments available to relevant Employees. This is because, once an Employee’s ordinary hours are set in a roster (which will be done in advance per the roster clause), the Employee will continue to be entitled to receive overtime payments if they are directed to work additional hours for which they have not been rostered in accordance with subclause 10.5. This would include any hours that are within the Employee and Calvary’s pre-employment agreement as to the hours the Employee will be available to work, but for which the Employee has not been rostered in the relevant roster cycle;
(b)the arrangements in the Enterprise Agreement provide for a reasonably predictable pattern of work as set out at clause 10.1, as required by the Award. They do so by requiring:
(i)that the agreed minimum number of hours the Employee is to work per fortnight to be set;
(ii)the Employee’s agreement prior to the commencement of employment as to the days and the shifts that they are willing to make themselves available to be rostered to work their ordinary hours;
(iii)that the Employee is notified of the precise pattern of work in any given roster period 4 weeks in advance of the commencement of that roster period per clause 17.3.
(c)the Award allows for the ‘terms’ of the pre-employment agreement between an employer and a part-time Employee to be varied by written agreement at any time (clause 10.3 of the Award). The Award provides no restrictions as to the manner in which the ‘terms’ may be varied;
(d)the flexibility accommodated in a pre-employment agreement for a part-time Employee under the Enterprise Agreement could therefore otherwise be achieved under the Award – albeit after the employment commences;
(e)given the strong concordance between the part-time arrangements in similar cases and the present case, the Commission ought to follow the approach adopted in these cases; and
(f)noting the commentary from similar decisions, the distinction in the provisions between the Enterprise Agreement and the Award does not constitute a detriment of a magnitude that, when having regard to the totality of the entitlements and more beneficial conditions under the Enterprise Agreement, results in an assessment that part-time employees are not better off overall under the Enterprise Agreement than under the Award.
In Retail and Fast Food Workers Union Incorporated v Hungry Jack’s Australia Ltd trading as Hungry Jack’s,[12] the Full Bench made the following relevant observations:
“… although clause 12.2 of the Agreement does not, unlike the Award, require agreement at the outset as to the days of the week required to be worked and the start and finishing times in each day, it does require that the amount of hours worked in each week or roster cycle must be fixed and confined to the days and times the employee agrees to be available to work. The requirement for agreement as to availability gives the employee a considerable degree of control over when hours are to be work [sic], and the overriding requirement for reasonable predictability of hours remains. This position is to be contrasted to that considered by the Full Bench in Loaded Rates Agreements, where the scheme of part-time employment in the Aldi enterprise agreements in question there did not provide for any guarantee of the hours of work to be provided in any particular week or for reasonable predictability of hours.”
In Healthe Care Burnie Pty Ltd (‘North West Private’) and Health and Community Services Union Hospital Staff Enterprise Agreement 2020,[13] Deputy President Masson relevantly observed:
“I accept that there may be a lifestyle detriment for some employees in terms of the variations in the pattern of work from fortnight to fortnight. The variation of work patterns may equally suit some employees. The degree of potential variation will also be dependent on what has been agreed in writing by the employee on commencement of employment or subsequently agreed in writing by way of variation. The guaranteed number of hours per fortnight and payment for additional hours at overtime rates where a part-time employee is directed to work beyond the agreed number of hours satisfies me that there is no financial detriment relative to the Award that arises from the proposed undertaking. I attach limited weight to the lifestyle detriment, to which I have referred above, in my assessment of the BOOT.”
I agree with these observations. They were made at a more recent point in time than the earlier decision of Deputy President Masson in Japara Administration Pty Ltd,[14] which dealt with a different award. The observations made by the Full Bench in Hungry Jack’s and Deputy President Masson in Healthe Care also largely apply to the present case. I accept that there is some detriment to Employees because clause 10 of the Enterprise Agreement gives Calvary the ability to change a part time Employee’s rostered hours from one roster to the next within the span of hours and days agreed by the Employee. However, if an Employee has a concern about having their hours of work changed from one roster to the next, they could seek to ameliorate the risk by only agreeing to a limited span of hours and/or days of work. This may, depending on other factors, reduce their likelihood of being offered employment by Calvary on a part time basis. Overall, I will give the detriment associated with clause 10 of the Enterprise Agreement some weight but not the significant weight contended for by the HSU.
Annual leave
Clause 23.11 of the Enterprise Agreement provides:
“Annual leave during close down periods
(a) It is noted that the last week of December and the month of January are times of less activity for the Employer, thereby resulting in a shut-down or partial shut down, of certain areas and a significant curtailment of services in other areas at the Employer’s hospitals.
(b) Management will consult with staff at least 8 weeks beforehand concerning changes to rosters and redeployment options (as set out at subclause (b)) or the use of leave, over the period(s) set out at paragraph 23.11(c) above, bearing in mind the operational requirements of the hospitals.
(c) Where there are no redeployment options, management reserves the right to direct employees to utilise up to two weeks (up to 3 weeks in the case of St James ward only) of their accrued leave entitlement over the period(s) set out at 23.11 of this clause, provided that such direction is reasonable.
(d) Where an Employee does not have sufficient accrued annual leave for these period(s), the Employee may be required to take annual leave in advance where such requirement is reasonable. Alternatively, Employees may elect to take leave without pay for all or part of the shut-down period(s). Additionally, employees may utilise banked time in lieu of overtime and accrued days off for all or part of the shutdown period(s).
(e) Nothing in this clause prevents an Employee from being on call during the close-down period(s) where mutually agreed between the Employer and the Employee.
(f) Notwithstanding the provisions set out at this subclause, paragraphs (a) and (b) above, in unforeseen and pressing circumstances, periods of less activity for the Employer may arise – resulting in shutdowns or partial shutdowns. The minimum 8 week consultation period set out at paragraph (b) will be reduced to one week for shutdowns (or partial shutdowns) which are as a result of circumstances beyond the Employer’s control, including but not limited to Government health directives or other state of emergency directives.”
Clause 27.5 of the Award confers a right on an employer to shut down all or part of a medical or dental practice for a particular period and to require affected employees to take paid annual leave during such time. No such right exists under the Award for employees covered by the Award if those employees work in somewhere other than a medical or dental practice.
The HSU submits that clause 23.11 of the Enterprise Agreement is incredibly onerous on Employees and such a term is absent from the Award for hospital employees. In the Award, a close-down period may only be applied to ‘Medical practices’ and not hospitals. ‘Medical practicies’ refers to general practices and do not include a ‘hospital’. By virtue of its absense from the Award, the ability to direct an Employee to take annual leave in the Enterprise Agreement is less beneficial than the Award. The HSU further submits that the Enterprise Agreement term can require an Employee to take up to three weeks of annual leave during the Christmas period. The requirement for an Employee to take up to 75% of their accrued annual leave in a single year is not, so the HSU contends, reasonable.
Calvary submits that section 93(3) of the Act:
(a) provides that a modern award or enterprise agreement may include terms “requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable”; and
(b) contemplates that there may be circumstances prescribed in an enterprise agreement where an employee is required to take a period of annual leave, subject to the requirement being reasonable. Those circumstances relevantly include closedown arrangements.
Further, Calvary submits that the Full Bench noted in its decision pertaining to a varied model shutdown term in modern awards,[15] that such arrangements “may encourage parties to engage in collective bargaining to establish shutdown provisions that address more directly the circumstances of the enterprise...”[16]
Therefore, whilst the Award does not prescribe that the arrangements set out at clause 27.5 apply to a hospital setting, Calvary contends this does not render the Enterprise Agreement provision less beneficial, but merely aligns with the cited Full Bench reasoning that such award arrangements may encourage parties to establish, via bargaining, an enterprise agreement provision “that address more directly the circumstances of the enterprise”. The relevant consideration therefore remains whether the Enterprise Agreement provision is reasonable in accordance with s 93(3) of the Act. Calvary submits that the provision is reasonable.
I accept that clause 23.11 of the Enterprise Agreement does not contravene the National Employment Standards, which require that any term in an enterprise agreement permitting an employee to be required to take paid annual leave be reasonable. Clause 23.11 requires that any direction given to an Employee to take accrued leave must be reasonable.
That the Enterprise Agreement complies with the National Employment Standards does not say anything about whether the term in question is detrimental to employees, beneficial to employees, or neutral, compared to the Award. The Enterprise Agreement would, if approved, give Calvary a right to potentially require Employees to take their accrued leave or annual leave in advance during a shut down, subject to the constraints in clause 23.11 of the Enterprise Agreement. No such right exists under the Award in respect of the Employees because they do not work in a medical or dental practice. It follows that clause 23.11 of the Enterprise Agreement is detrimental to Employees compared to the Award. The weight to be given to this matter is reduced, but certainly not eliminated, by the limitations and safeguards built into clause 23.11, including the requirement that any direction to take accrued leave or annual leave in advance during a shut down must be reasonable and consultation must take place well before any shut down in which Employees may be directed to take such leave.
Undertakings
The Undertakings have addressed BOOT concerns I raised about lower level administrative and clerical employees performing higher duties and minimum payments to casual employees while undertaking mandatory training.
Other benefits and detriments
From the benefits identified in Calvary’s form F17B declaration, all of which I have given some weight, I consider the following to be worthy of note, albeit some of them are conditional:
(a)pay rates above the Award, by at least 5% in most cases, save for pastoral care employees;
(b)the Enterprise Agreement provides for payment of 200% of the ordinary rate on a Sunday, compared with 150% under the Award;
(c)the Enterprise Agreement provides for 152 hours of paid personal leave per year, compared with 10 days under the Award;
(d)the Enterprise Agreement provides for generous paid parental leave entitlements, whereas no paid parental leave is available under the Award;
(e)the redundancy pay provisions under the Enterprise Agreement are more beneficial than the Award;
(f)the Enterprise Agreement provides for 20 days’ paid leave to deal with family and domestic violence, compared with 10 days’ paid leave under the Award;
(g)the shift penalties for shift work under the Enterprise Agreement are more beneficial than the Award;
(h)the Enterprise Agreement provides for 3 days’ paid compassionate leave for each permissible occasion, compared to two days’ under the Award; and
the Enterprise Agreement provides for three days’ paid professional development leave for full time employees, whereas no such leave is available under the Award.
From the detriments identified in Calvary’s form F17B declaration, all of which I have given some weight, I consider the following to be worthy of note:
(a)no laundry allowance is payable under the Enterprise Agreement, whereas the Award provides for a laundry allowance of $0.32 per shift of $1.49 per week, whichever is lesser;
(b)the rest period after overtime is 8 hours under the Enterprise Agreement, whereas it is 10 hours under the Award;
(c)mandatory training is treated less beneficially under the Enterprise Agreement compared to the Award; and
(d)no nauseous work allowance is payable under the Enterprise Agreement, whereas such an allowance is payable under the Award.
BOOT conclusion
Having carefully considered all the benefits and detriments in the Enterprise Agreement (considered together with the Undertakings) compared to the Award, my value judgment is that I am satisfied, as at the ‘test time’, that each award covered Employee, and reasonably foreseeable employee, for the Enterprise Agreement would be better off overall if the Enterprise Agreement applied to the Employee than if the relevant award applied to the Employee. The benefits, including the higher pay rates, outweigh the detriments.
Satisfaction of other requirements
In accordance with s 190(3) of the Act, I may only accept the Undertakings if I am satisfied that the effect of accepting the Undertakings is not likely to:
(a)cause financial detriment to any employee covered by the Enterprise Agreement; or
(b)result in substantial changes to the Enterprise Agreement.
The Undertakings have been provided to address various issues identified by the Commission. The purpose of the Undertakings is to provide additional protection and/or benefits to Employees. I am satisfied that accepting the Undertakings would not be likely to cause financial detriment to any Employee covered by the Enterprise Agreement.
As to whether the effect of accepting the Undertakings is likely to result in substantial changes to the Enterprise Agreement, it is relevant that the Undertakings do not seek to alter the structure of remuneration paid under the Enterprise Agreement.[17] The Undertakings use the remuneration structure built into the Agreement and enhance benefits for Employees by increasing the entitlements paid to Employees in particular scenarios. I am satisfied that the Undertakings do not change the “essence or nature” of the Enterprise Agreement.[18] Having regard to all the circumstances, I am satisfied that the effect of accepting the Undertakings is not likely to result in substantial changes to the Enterprise Agreement.
In accordance with section 190(2) of the Act, I am satisfied that the Undertakings will meet the concerns I have identified in relation to whether the Enterprise Agreement meets the requirements set out in sections 186 and 187 of the Act.
The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.
Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.
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 of the Enterprise Agreement have been met.
Deductions
Clause 39.2 of the Enterprise Agreement provides that Calvary may, if an Employee is at least 18 years old and does not give the requisite notice of their termination, deduct from wages due to the Employee under the Enterprise Agreement an amount that is no more than one week’s wages for the Employee, provided that the deduction must not be unreasonable in the circumstances. In my opinion, this clause contravenes s 324(1)(b) of the Act and is unenforceable. Section 324(1)(b) of the Act permits an employer to deduct an amount from an amount payable to an employee if the deduction is authorised by the employee in accordance with an enterprise agreement. Clause 39.2 of the Enterprise Agreement does not require the deduction to be authorised by the Employee.
Section 218A application
On 2 September 2025, Calvary made an application pursuant to section 218A of the Act to vary the Enterprise Agreement to correct or amend obvious errors, defects or irregularities in the Enterprise Agreement.
Calvary submits that the Enterprise Agreement contains obvious errors, defects or irregularities, the details of which are set out and considered below.
Statutory Provisions
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 an enterprise agreement 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.
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 of s 218A application
Calvary seeks to vary the Enterprise Agreement as follows:
· So that rates of pay for “Technical CSSD Level 4” and “Technical CSSD Level 5” employees, including corresponding information for each column in the table which appears under the heading “TECHNICAL EMPLOYEES – CSSD” are included at Schedule A of the Enterprise Agreement.
· So that the subheading “Level 1” contained at “Theatre” under the heading “TECHNICAL (CSSD and Theatre)” at Schedule B of the Enterprise Agreement be amended to read “Level 1A”.
· So that the subheading “Level 1A” contained at “Theatre” under the heading “TECHNICAL (CSSD and Theatre)” at Schedule B of the Enterprise Agreement be amended to read “Level 1B”.
· So that the words “Supply Manager” are added under the respective sub-headings which read “Indicative roles at this level are:” at Level 6 and Level 7 under the heading which reads “ADMINISTRATIVE & CLERICAL” in Schedule B of the Enterprise Agreement.
Calvary submits that the omission of rates of pay for Level 4 and Level 5 CSSD Technicians at Schedule A of the Enterprise Agreement, together with inconsistent references for the Theatre Technician Level 1A and 1B in Schedule A (whereas the corresponding classifications are referred in Schedule B as Level 1 and 1A) represents an obvious error, noting that the position advanced was an applied increase effective from the first full pay period on or after 1 July 2025 on current rates. Calvary further submits that the reference to Supply Manager as an indicative classification has been inadvertently omitted from Administration levels 6 and 7 at Schedule B of the Enterprise Agreement.
As Deputy President Masson set out in Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026 [2022] FWCA 4390:
[9] It is apparent from the text of s. 218A and the supporting EM that s. 218A is intended to overcome the statutory limitation imposed by s.602 of the Act that was most recently identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union[19] (Advantaged Care). In that decision the Full Bench confirmed that the Commission could not amend the text of an agreement to correct an obvious error, defect or irregularity pursuant to s. 602 of the Act and that other provisions within the Act, ss. 210 or 217, might be used to rectify such error, defect or irregularity.
[10] There are limitations to the use of ss. 210 and 217 of the Act in varying an agreement to address an obvious error, defect or irregularity. For example, it may be considered costly and impractical to conduct a ballot of employees for the purpose of obtaining approval for the variation of an agreement pursuant to s. 210 of the Act, where the variation sought is not substantive. Section 217 might also not be amenable to correcting an obvious error, defect or irregularity where the error does not create uncertainty or ambiguity. It is accepted that s. 218A confers an additional discretion for the Commission to amend an error, defect, or irregularity in an agreement, be that in form or substance.
In the present case the contended errors are that of a failure to include rates of pay and other corresponding information for employees at Technical CSSD Levels 4 and 5 in Annexure A of the Enterprise Agreement, a failure to correctly label the first two levels of Theatre classifications at Schedule B of the Enterprise Agreement, and a failure to include the Supply Manager classification as an indicative classification at levels 6 and 7 for Administrative employees at Schedule B of the Enterprise Agreement.
The views of the HSU were sought in relation to the variation application.
Conclusion
For the reasons set out above, I am satisfied that the errors identified by Calvary in the Enterprise Agreement are obvious errors or irregularities within the meaning of s 218A(1) of the Act. I am further satisfied that the application to vary the Enterprise Agreement has been made by an employer covered by the Enterprise Agreement, thus satisfying the requirements of s 218A(2)(b)(i) of the Act. Having regard to all the circumstances, I am satisfied that it is appropriate to exercise my discretion under s 218A to vary the Enterprise Agreement to correct the errors identified by Calvary. The variation sought will operate from 21 October 2025, being the date on which the Enterprise Agreement commences operation. An order giving effect to this decision will be separately issued.
The Enterprise Agreement is approved and, in accordance with s 54 of the Act, will operate from 21 October 2025. The nominal expiry date of the Enterprise Agreement is 1 September 2027.
The HSU has given notice to the Commission that it wants to be covered by the Enterprise Agreement. In accordance with s 201(2) of the Act, I note that the Enterprise Agreement covers the HSU.
DEPUTY PRESIDENT
Annexure A
[1] s.186(2)(d) of the Act
[2] s.193(6) of the Act
[3] [2010] FWAFB 9985 at [41]
[4] SDA v Beechworth Bakery Employee Co Pty Ltd[2017] FWCFB 1664 at [12]; s 193A(2) of the Act
[5] Re Australia Western Railroad Pty Ltd T/A ARG – A QR Company [2011] FWAA 8555 at [8]; NTEIU v University of New South Wales[2011] FWAFB 5163 at [47]
[6] TWU v Jarman Ace Pty Ltd[2014] FWCFB 7097 at [28]
[7] Loaded Rates Agreements [2018] FWCFB 3610 at [100]
[8] s 193A(3) of the Act
[9] s 193A(4) of the Act
[10] s 193A(6) of the Act
[11] s 193A(6A) of the Act
[12] [2020] FWCFB 1693 at [72]
[13] [2020] FWC 6393 at [26]
[14] [2019] FWC 6011
[15] [2022] FWCFB 246
[16] Ibid at [83]
[17] CFMMEU v Macmahon Contractors Pty Ltd[2018] FWCFB 4429 at [28]; CFMMEU v Lightning Brick Pavers (2018) 281 IR 9 at [24]
[18] CFMMEU v C&H Acquisition Pty Ltd (2020) 296 IR 294 at [37]
[19] [2021] FWCFB 453.
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