FURTHER DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Christian Brethren Community Services
(AG2017/4842)

CBCS, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017 - 2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 8 MARCH 2018

Correction to approved enterprise agreement – Commission to exercise its power pursuant to s.602 of the Act – correction to decision [2017] FWCA 6686 issued on 21 December 2017 in matter AG2017/4842 Application for approval of the Christian Brethren Community Services, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Christian Brethren Community Services, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Christian Brethren Community Services (the Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement was approved by the Fair Work Commission (the Commission) on the 21 December 2017 pursuant to s.186 of the Act, with decision reference [2017] FWCA 6686.

[3] On the 6 December 2017, the Commission received an amended copy of the rates of pay for table 4 on page 82 of the agreement from the Applicant’s representative. The amended copy of the wage table was intended to amend the error with the alignment of the rights of pay for the classifications relating to “Level 1-3 year degree Health Professionals”. Following approval of the Agreement, it came to the Commission’s attention that the amended copy of the wage table erroneously varied the date of operation of the rates of pay to the “14 September 2017” when it should read “First pay period on or after FWC EA Approval”.

[4] The Commission brought this issue to the attention of the Applicant, the relevant bargaining representatives and the employees proposed to be covered by the Agreement. The Commission proposed that a correction be made to the Agreement so that the date of operation of the rates of pay in table 4 reflects what would have been the case under the terms of the Agreement considered and voted on by employees. On the 1^st February 2018, the Applicant and the bargaining representatives agreed that the error should be corrected.

[5] I am satisfied based on the correspondence received from the Applicant that the variation to the date of operation of the rates of pay does not achieve what was originally intended.

[6] Section 602 of the Act provides that the Commission may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission, other than one contained in a modern award or national minimum wage order. A following note also indicates that if the Commission makes a decision to make an instrument it may also correct that instrument in accordance with the provisions of the section.

[7] I am satisfied based on the correspondence from the Applicant that as a result of a genuine error, the incorrect version of table 4 of page 82 of the Agreement was submitted for approval.

[8] I am satisfied that it is appropriate to exercise the power under s.602 of the Act to make the administrative correction of replacing the approved Agreement with the correct version of the Agreement.

[9] In accordance with s.602 of the Act, the decision issued by the Commission on 21 December 2017, [2017] FWCA 6686 is amended so that the Agreement is replaced with the version of the Agreement attached to this decision.

[10] An order giving effect to this decision has been issued separately in PR600968.

COMMISSIONER

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CaseChat Overview and Summary

Christian Brethren Community Services, an organisation involved in the dispute, sought correction to a previously approved enterprise agreement. The Fair Work Commission (FWC) was petitioned to exercise its power under section 602 of the Fair Work Act 2009. The Commission was asked to correct a decision made on 21 December 2017 in the matter of Application for approval of the Christian Brethren Community Services, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020. The primary issue for the Commission was whether the earlier decision, rendered in the 2017 case, contained errors warranting correction. The Commission had to determine whether the approved enterprise agreement needed any amendments following the discovery of these errors.

In considering the application for correction, the Commission examined the specific provisions of section 602 of the Fair Work Act, which allows for the amendment of a decision concerning the approval of an enterprise agreement. The Commission needed to ascertain whether the errors identified were significant enough to necessitate a revision of the approved agreement. The key consideration was whether the correction would substantially affect the fairness and balance of the original decision. The Commission had to balance the interests of all parties involved, including the employees, the employer, and the unions, in determining whether the proposed corrections were justified.

The Commission concluded that the errors in the original decision were indeed significant and warranted correction. The approved enterprise agreement contained provisions that did not align with the intentions of the parties at the time of approval. The corrections proposed by the applicant were necessary to accurately reflect the agreement as intended. The Commission exercised its power under section 602 and issued a corrected decision, ensuring that the enterprise agreement was consistent with the original intentions of the parties. The Commission's decision was aimed at rectifying the inaccuracies and preserving the integrity of the agreement.

In summary, the Fair Work Commission granted the application for correction of the previously approved enterprise agreement. The corrected decision ensures that the agreement accurately reflects the intentions of the parties, thereby maintaining the fairness and balance of the original agreement. This decision corrects the errors identified in the prior decision and ensures that the enterprise agreement operates as intended by all parties involved.

Christian Brethren Community Services

FURTHER DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established