Commonwealth of Australia represented by the Australian Institute of Health and Welfare

[2024] FWCA 1620

[2024] FWCA 1620

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 represented by the Australian Institute of Health and Welfare

(AG2024/1422)

AUSTRALIAN INSTITUTE OF HEALTH AND WELFARE ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
DEPUTY PRESIDENT MASSON	MELBOURNE, 6 MAY 2024

Application for variation of the Australian Institute of Health and Welfare Enterprise Agreement 2024-2027.

1. The Commonwealth of Australia represented by the Australian Institute of Health and Welfare (the Applicant) has made an application pursuant to s 218A of the Fair Work Act 2009 (the Act) to vary the Australian Institute of Health and Welfare Enterprise Agreement 2024-2027[1] (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by the Commission on 27 February 2024 and commenced operation on 5 March 2024.[2] The Applicant submits that the Agreement contains errors, defects or irregularities, the details of which are set out and considered below. The Community and Public Sector Union (CPSU), which was a bargaining representative for the Agreement, supports 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 address an error in clause 76 table 1 of the Agreement, which provides the allowance rates for emergency out-of-hours contact officers. The Applicant submits that an error was made in calculating these allowance rates.

1. The Applicant submits that the allowance rates in clause 76 table 1 were erroneously based on the rate of $31 provided by the previous Agreement[3]. This error it says was made as the allowance rate in the previous Agreement was higher than the Australian Public Service Commission’s minimum allowance rate of $30.51.

1. The Applicant states that the allowance rates should have instead been based on $33.88 as was provided in the Public Service (Section 24(1) – Australian Institute of Health and Welfare Non-SES Employees) Determination 2022/01, and then subsequently increased in line with the 4 percent salary increase.

1. In these circumstances I am satisfied that it is appropriate for the Commission to vary the Agreement to replace the allowance rates in table 1 at clause 76 of the Agreement to ensure that they reflect what was agreed to by the parties.

Conclusion

1. For the reasons set out above, I am satisfied that the error that occurred in calculating the allowance rates at clause 76 is an error that falls 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 6 May 2024. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

[1] AE523665.

[2] [2024] FWCA 742.

[3] AE421603.

Printed by authority of the Commonwealth Government Printer

<AE523665  PR774445>