Commonwealth of Australia as represented by the Department of Parliamentary Services

[2024] FWCA 1676

[2024] FWCA 1676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Commonwealth of Australia as represented by the Department of Parliamentary Services

(AG2024/1491)

Commonwealth employment
DEPUTY PRESIDENT MASSON	MELBOURNE, 17 MAY 2024

Application for variation of the Department of Parliamentary Services Enterprise Agreement 2024.

1. The Commonwealth of Australia as represented by the Department of Parliamentary Services (the Applicant) has made an application pursuant to s 218A of the Fair Work Act 2009 (the Act) to vary the Department of Parliamentary Services Enterprise Agreement 2024[1] (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by the Commission on 28 March 2024 and commenced operation on 4 April 2024.[2]

1. Subsequently, the Applicant made an application to validate the approval of the Agreement pursuant to s.602A of the Act. The application was made in circumstances where a draft Agreement was filed with the original Agreement approval application and not the Agreement as made (the Agreement as Made). On 6 May 2024, I made a determination[3] that the approval of the Agreement was valid and effective and stated that the draft Agreement was to be removed from the Commission’s website and replaced with a copy of the Agreement as Made.

1. In making the s.602A application the Applicant became aware that the Agreement as Made contains errors. Consequently, the Applicant made a s.218A application and seeks that the Agreement as Made be varied to correct these errors, which are set out and considered below.

1. Following receipt of the s.218A application correspondence was issued to the union and employee bargaining representatives, advising that should any party oppose the application they were required to file any submissions and other material on which they would seek to rely by close of business Thursday, 2 May 2024. No materials were filed nor did any of the parties advise my Chambers that they oppose the Application.

Statutory Provisions

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) Bill 2022, provides for the variation of enterprise agreements 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.”

1. 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

1. The variation sought by the Applicant seeks to amend errors in the Agreement as Made at clause 20.3 and Appendix C – Definitions.

1. The Applicant states that the Agreement as Made adopts the drafting of the template clauses relating to casual employment per the APS’ Statement of Common Conditions (SoCC), with the exception of the following inadvertent errors:

a.The use of the words “irregular and intermittent” instead of “irregular or intermittent” in both clause 20.3 and Appendix C – Definitions; and

b.The use of the words “causal employee (irregular and intermittent employee)” as the defined term in Appendix C – Definitions, instead of “casual (irregular or intermittent) employee”.

1. The Applicant submits that the definition of a casual employee in the Parliamentary Services Act 1999 (PS Act) provides for the engagement of parliamentary services employees “for duties that are irregular or intermittent”.  In circumstances where Appendix C expressly references s. 22(2)(c) of the PS Act, the Applicant contends that the use of the words “irregular and intermittent” is an obvious error.

1. The Applicant also refers to clause 20.1 of the Agreement, which states that “A casual (irregular or intermittent) employee is defined in Appendix C”. As such, the Applicant submits that the clear intention of clause 20.1 is that the definition in Appendix C defines the term “Casual (irregular or intermittent) employee” not “Casual employee (irregular and intermittent employee)”.

1. In relation to clause 20.3, the Applicant argues that the reference to “irregular and intermittent duties” is inconsistent with the heading of clause 20, the text of clause 20.1, the PS Act and the SoCC, which all adopt the wording “irregular or intermittent”.

1. The Applicant states that the variation sought will not result in disadvantage to employees, rather it will provide clarity to employees regarding the definition of “irregular or intermittent” causal employment.

1. In these circumstances I am satisfied that it is appropriate for the Commission to vary the Agreement to replace the incorrect wording in clause 20.3 and Appendix C- Definitions so that it reflects the definition of “irregular or intermittent” causal employment intended by the parties.

Conclusion

1. For the reasons set out above, I am satisfied that the errors that occurred in drafting clause 20.3 and Appendix C – Definitions are errors that fall 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 employer covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(i) of the Act. The variation sought will operate from 17 May 2024. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

[1] AE523951.

[2] [2024] FWCA 1062.

[3] [2024] FWCA 1616.

Printed by authority of the Commonwealth Government Printer

<AE523951  PR774571>