City of Whittlesea v Australian Municipal, Administrative, Clerical and Services Union

[2024] FWC 2977

[2024] FWC 2977

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A – Variation to correct or amend errors, defects or irregularities

City Of Whittlesea
v

Australian Municipal, Administrative, Clerical and Services Union

(AG2024/4118)

COMMISSIONER REDFORD MELBOURNE, 30 OCTOBER 2024

Application for variation of the City of Whittlesea Enterprise Agreement No.10 (2023)

1. On 18 October 2024 City of Whittlesea filed an application (the Application) pursuant to s 217 of the Fair Work Act 2009 (Cth) (the Act) with the Fair Work Commission. The Application sought that the Commission vary the Whittlesea City Council Enterprise Agreement No.10 (2023) (the 2023 Agreement) to remove an ambiguity or uncertainty.

2. The 2023 Agreement covers the City of Whittlesea, the Australian Municipal, Administrative, Clerical and Services Union (ASU), Professionals Australia and the Australian Nursing and Midwifery Federation (ANMF).

3. The Application was accompanied by material that confirmed each of the parties referred to above had no objection to the Application.

4. While the Application was made pursuant to s 217 of the Act, on 28 October 2024 I indicated to the parties that it appeared it may have been more properly made pursuant to s 218A of the Act. City of Whittlesea confirmed that it did not object to the proposition that the variations it seeks be made pursuant to s 218A instead of s 217. None of the other parties referred to above objected to that proposition.

5. Section 218A of the Act 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.

(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 2023 Agreement was made in December 2023. It replaced a previous Agreement, the Whittlesea City Council Enterprise Agreement No.9 (2019) (the 2019 Agreement).

2. As is often the case, it appears the text of the 2023 Agreement was developed by using the 2019 Agreement as a template. However, during the process, errors arose including the failure of some clauses to be properly replicated in full, or as a result of formatting changes. In particular:

a.Clause 11.3, which includes a table, contained errors as a result of a formatting change;

b.Clause 12.24 carried over only the first two sub-clauses, and not the complete set of sub-clauses intended to be included;

c.Clause 11.8 was the subject of alteration in the 2023 Agreement, but as part of this alteration a clause from the 2019 Agreement intended to be included was accidentally omitted;

d.Clause 13.2 of the Agreement contained numerical errors (which may well have amounted to an ambiguity, in any event).

1. I am satisfied that these are obvious errors, particularly when the terms of the 2019 Agreement is compared with the 2023 Agreement. Noting in particular that each party covered by the Agreement had no objections to the variations sought in City of Whittlesea’s application, I propose to vary these terms as provided for in the Order accompanying this decision.

2. The variation will operate from the date of the Order, being 30 October 2024.

3. To the extent that it necessary, the Application made by City of Whittlesea pursuant to s 217 of the Act is dismissed.

COMMISSIONER

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