Commonwealth of Australia, represented by the Department of Foreign Affairs and Trade T/A Department of Foreign Affairs and Trade
[2024] FWCA 825
•5 MARCH 2024
| [2024] FWCA 825 |
| 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 Department of Foreign Affairs and Trade T/A Department of Foreign Affairs and Trade
(AG2024/454)
| Commonwealth employment | |
| DEPUTY PRESIDENT MASSON | MELBOURNE, 5 MARCH 2024 |
Application for variation of the Department of Foreign Affairs and Trade Enterprise Agreement 2024
The Commonwealth of Australia, represented by the Department of Foreign Affairs and Trade T/A Department of Foreign Affairs and Trade (the Applicant) has made an application pursuant to s 218A of the Fair Work Act 2009 (the Act) to vary the Department of Foreign Affairs and Trade Enterprise Agreement 2024.[1] (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Commission on 23 February 2024 and commenced operation on 1 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
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.”
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
The variations to the Agreement sought by the Applicant seek to address cross-referencing and typographical errors and are set out in Attachment A to this decision. I am satisfied on reviewing the material that the issues raised by the application constitute genuine cross-referencing and typographical errors and that the variations if approved would not alter the intent or substance of the Agreement. In these circumstances I am further satisfied that it is appropriate for the Commission to vary the Agreement to replace the erroneous cross-references with the correct cross-references and amend the typographical errors. This will ensure that the Agreement is clear on its face and reflects what was intended by the parties.
Having regard to the above I am satisfied that it is appropriate for the Agreement to be varied in the following manner;
a)at clause 33, by deleting the reference to “clause 31” and replacing it with “clause 30”;
b)at clause 105.1, by deleting the reference to “clauses 206.1 to 206.2” and replacing it with “clauses 204.1 to 204.2”;
c)at clause 219, by deleting the reference to “clause 31” and replacing it with “clause30”;
d)at clause 282, by deleting the reference to “clause 281” and replacing it with “clause 279”;
e)by re-numbering clause 384 as clause 383.2 and including a note after clause 383.2 that provides “384. [not used]”;
f)at clause 2.1 of Attachment C, by deleting the reference to “clause 3” and replacing it with “clause 2.2”;
g)at clause 196, by deleting the reference to “and manager” and replacing it with “and manager”;
h)at clause 438, by deleting the reference to “clause 437will” and replacing it with “clause 437 will”;
at clause 424, by deleting the words “she or he” and replacing with “they”; and
j)at clause 430, by deleting the words “his or her” and replacing with “their”.
Conclusion
For the reasons set out above, I am satisfied that the cross-referencing and typographical errors set out in Attachment A to this decision are errors 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 5 March 2024. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
Attachment A
Agreement Cross Referencing Errors
| Clause | Erroneous cross-reference | Correct cross-reference | Explanation |
| 33 | 31 | 30 | Cause 33 includes a reference to the eligibility criteria for incremental advancement. The eligibility criteria for incremental advancement are set out in clause 30, and not clause 31. Clause 31 limits the number of times an employee may receive incremental advancement while on unpaid parental leave. It does not set out the eligibility criteria for incremental advancement. The eligibility criteria in clause 30 are subject to clause 31. The cross-reference in clause 33 should be to clause 30, and not clause 31. |
| 105.1 | 206.1 to 206.2 | 204.1 to 204.2 | Clause 105.1 refers to the accrual of personal/carer’s leave for non-ongoing employees being different to that of ongoing employees. The accrual of personal/carer’s leave for ongoing and non-ongoing employees is set out at clauses 204.1 to 204.2, and not clauses 206.1 to 206.2. Clause 206 refers to unpaid leave for casual employees. The cross-reference in clause 105.1 should be to clauses 204.1 to 204.2, and not clauses 206.1 to 206.2. |
| 219 | 31 | 30 | Clause 219 provides that leave without pay of more than 30 days will not count as service for any purpose, including eligibility for salary advancement or performance bonuses, unless provided for by clause 31. The eligibility for incremental salary advancement (including which types of unpaid leave will count towards the working day criteria) are set out in clause 30, and not clause 31. Clause 31 limits the number of times an employee may receive incremental advancement while on unpaid parental leave. It does not set out the eligibility criteria for incremental advancement. The eligibility criteria in clause 30 are subject to clause 31. The cross-reference in clause 219 should be to clause 30, and not clause 31. |
| 282 | 281 | 279 | Clause 282 provides that employees may be granted leave to attend interviews and examinations related to enlistment in a reserve force of the defence force which is in addition toother defence reservist leave entitlements. The substantive entitlement to defence reservist leave is in clause 279, and not clause 281. Clause 281 provides leave only for officers/instructors in the cadet force, which is a different and more confined entitlement to the substantive leave entitlement for employees who are defence reservists provided for by clause 279. The cross-reference in clause 282 should be to |
| 384 | 384 | 383.2 | Clause 384 sets out one of the steps the department must take after it proposes to introduce a change to regular roster or ordinary hours of work. Accordingly, this clause should be a further subclause under clause 383 and not a standalone clause. This clause should be numbered 383.2, and not clause 384. To avoid confusion, the Agreement should include a notation under the-renumbered clause 383.2 that makes clear that clause 384 is not used in the Agreement. |
| 2.1 of Attachment C | 3 | 2.2 | Clause 2.1 of Attachment C confers a one-off APO payment to particular employees. This clause should be subject to clause 2.2 of Attachment C, which deals with the pro-rating of that payment for particular employees. Clause 3 is not relevant to the APO payment provided for by clause 2.1 and contains a separate and distinct allowance for a particular group of employees. The cross-reference in clause 2.1 of Attachment C should be to clause 2.2, and not clause 3 of Attachment C. |
Agreement Typographical Errors
The Applicant has also identified the following typographical errors:
a.at clause 196, the reference to “and manager” should be “and manager”;
b.at clause 438, the reference to “clause 437will” should be “clause 437 will”;
c. at clause 424, the words “she or he” should be “they”; and
d. at clause 430, the words “his or her” should be “their”.
[1] AE523642.
[2] [2024] FWCA 731.
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