Doutta Galla Aged Services Ltd T/A Doutta Galla Aged Services

[2025] FWCA 1067

[2025] FWCA 1067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Doutta Galla Aged Services Ltd T/A Doutta Galla Aged Services

(AG2025/807)

DOUTTA GALLA AGED SERVICES LTD, ANMF AND HWU ENTERPRISE AGREEMENT 2024 - 2028

Aged care industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 31 MARCH 2025

Application for variation of the Doutta Galla Aged Services Ltd, ANMF and HWU Enterprise Agreement 2024 - 2028

1. Doutta Galla Aged Services Ltd (the Applicant) has applied pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Doutta Galla Aged Services Ltd, ANMF and HWU Enterprise Agreement 2024 - 2028 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by the Commission on 23 August 2024 and commenced operation on 30 August 2024. The Applicant is the sole employer covered by the Agreement. The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) are employee organisations covered by the Agreement.

1. The Applicant has filed a Form F1, seeking to vary figures in Appendix A as follows:

   ·   Under the heading Registered Nurses and Enrolled Nurses Allowance Rates on the page 84 of the Agreement, the figure in the ‘current’ column of the laundry allowance per week be amended from “$14.90” to “$1.90”, with increases applied accordingly; and

·   Under the heading PCAs and HASA Allowance Rates on the page 88 of the Agreement, the figure in the ‘current’ column of the dirty & offensive work allowance be amended from “$0.53” to “$0.56”, with increases applied accordingly.

1. I am satisfied that s.218A applies to the variations at paragraph 3 of this Decision.

Consideration

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) Act 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:

“(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. As has been noted in recent decisions of the Commission,[1] s.218A of the Act is akin to the slip rule found in s.602 of the Act, which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The evident purpose of s.218A is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

1. Before an amendment under s.218A can be made, there first must be satisfaction of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

1. The Applicant submits that the incorrect allowance figures arose due to typographical errors in entering in the ‘current’ allowance rate applying under the previous Agreement, into the version of the Agreement that was filed with the Commission. These errors had been identified and rectified by the Applicant prior to filing with the Commission, and the correct version of the Agreement was circulated to employees during the access and voting periods. By way of oversight, the earlier, incorrect version of the Agreement was then filed with the Commission.

1. The ANMF and HSU have provided correspondence to my chambers indicating that they support this application for variation of the Agreement.

1. I accept that the version of the Agreement lodged with the Commission did not contain the correct allowance figures in Appendix A and that this was an inadvertent error on the Applicant’s part. I accept those typographic errors arose during the drafting of an earlier version of the Agreement and that a correct version of the Agreement, containing the correct allowance figures, was the version provided to employees during the access and voting periods.

1. I am satisfied that the errors in the Agreement outlined at paragraph 3 of this Decision are obvious errors. I am satisfied the amendments should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the errors are readily identified, as are the corrections needed to make the Agreement accurately reflect what was clearly intended. The ANMF and HSU support the variations sought by the Applicant. There are no reasons not to exercise my discretion and good reasons to do so. The errors identified at paragraph 3, will be amended as per the order.

Order

1. I order, pursuant to s.218A of the Act, that:

·   Under the heading Registered Nurses and Enrolled Nurses Allowance Rates on the page 84 of the Agreement, the figure in the ‘current’ column of the laundry allowance per week is amended from “$14.90” to “$1.90”, with increases applied accordingly; and

·   Under the heading PCAs and HASA Allowance Rates on the page 88 of the Agreement, the figure in the ‘current’ column of the dirty & offensive work allowance is amended from “$0.53” to “$0.56”, with increases applied accordingly.

1. The variations pursuant to s.218A above will operate from 30 August 2024. The Agreement as varied attached, will be published simultaneously with this Decision.

DEPUTY PRESIDENT

[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

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