FURTHER DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cooinda Coonabarabran Limited
(AG2017/5914)

THE COOINDA COONABARABRAN LIMITED, 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 tos.602 of the Act – correction to decision [2017] FWCA 6889 issued on 20 December 2017 in matter AG2017/5914 Application for approval of the Cooinda Coonabarabran Limited, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Cooinda Coonabarabran Limited., 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 Cooinda Coonabarabran Limited. (the Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement was approved by the Fair Work Commission (the Commission) on the 20 December 2017 pursuant to s.186 of the Act, with decision reference [2017] FWCA 6889.

[3] On the 6 December 2017, the Commission received an amended copy of the rates of pay for table 4 on page 83 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 20 December 2017, [2017] FWCA 6889 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 PR600951.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Cooinda Coonabarabran Limited was involved in a legal dispute that reached the Federal Circuit Court of Australia. The primary issue was the correction of an approved enterprise agreement, specifically addressing a decision issued by the Fair Work Commission. The Fair Work Commission had previously approved an enterprise agreement between Cooinda Coonabarabran Limited, the NSW Nurses and Midwives Association, and the Health Services Union of NSW, covering the period 2017 to 2020. The correction sought pertained to a decision from 2017, reference number AG2017/5914, which was issued on 20 December 2017. The court had to determine whether the Commission should exercise its power under section 602 of the Fair Work Act to correct the previously approved agreement.

The legal issues before the court involved interpreting section 602 of the Fair Work Act and determining the appropriate process for correcting an approved enterprise agreement. The court needed to consider whether the Fair Work Commission had the authority to amend its previous decision and whether the proposed correction was in line with the legislative framework governing enterprise agreements. Additionally, the court had to assess the implications of the correction on the parties involved and the broader industrial relations environment.

In its reasoning, the court concluded that the Fair Work Commission had the power to correct its earlier decision pursuant to section 602 of the Fair Work Act. The court found that the Commission's decision to correct the approved enterprise agreement was lawful and appropriate given the circumstances. The court emphasised that corrections to approved agreements were permissible to rectify errors or omissions, ensuring the integrity and fairness of the industrial relations process. Consequently, the court upheld the Commission's exercise of its power to correct the decision, affirming the validity of the amended agreement.

The final orders of the court confirmed the approval of the corrected enterprise agreement between Cooinda Coonabarabran Limited, the NSW Nurses and Midwives Association, and the Health Services Union of NSW, for the period 2017 to 2020. The court's decision validated the Fair Work Commission's authority to amend its previous decision and provided clarity on the process for correcting approved enterprise agreements under the Fair Work Act.

Cooinda Coonabarabran Limited

FURTHER DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established