Elderly Chinese Home Inc.

[2023] FWCA 1082

[2023] FWCA 1082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Elderly Chinese Home Inc.

(AG2023/369)

ELDERLY CHINESE HOME INC. ANMF AND HSU ENTERPRISE AGREEMENT 2022

Aged care industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 17 APRIL 2023

Application for approval of the Elderly Chinese Home Inc. ANMF and HSU Enterprise Agreement 2022

Approval

1. An application has been made pursuant to s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the Elderly Chinese Home Inc. ANMF and HSU Enterprise Agreement 2022 (Agreement).

1. Question 17 of the Form F17 indicates the date of notification as 21 December 2022 and question 19 of the Form F17 indicates that the NERR was provided to employees on 2 January 2023. However, questions 18, 20, 21 and 22 of the Form F17 and the flowchart provided indicate that date of notification was 9 November 2022. Additionally, question 25 of the Form F17 indicates that voting commenced 6 February 2023 and the agreement was made 13 February 2023. The memorandum provided to employees states that voting would commence 23 January 2023 and close 6 February 2023 and the flowchart indicates that voting commenced 30 January 2023 and closed 13 February 2023.

1. The Employer provided submissions on 29 March 2023 that the provisions of s 188(2) of the Act provides a basis for the application of the discretion contained in that subsection to be applied and that there are obviously errors surrounding the dates certain things happened. The Employer further submitted that these errors appear to be minor procedural or technical issues and there was nothing to suggest that the employees covered by the agreement were or are in any way disadvantaged by the errors. The Employer therefore submits that the Agreement was genuinely agreed on the basis set out in section 188(2) of the Act and in turn that section 186(2)(a) has been satisfied.

1. In the circumstances and having regard to the submissions of the Employer and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that the error constitutes a minor procedural error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Australian Nursing and Midwifery Federation and the Health Services Union being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2) I note that the Agreement covers the organisations.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 24 April 2023. The nominal expiry date of the Agreement is 31 May 2023.

Variation

1. On review of the approval application the Commission identified a number of errors throughout the Agreement (Identified Errors) at the following points in the Agreement:

1. Clause 27.6(e) – ‘Error!’;

2. Appendix B, clause 3 – ‘Error!’

1. Appendix B, clause 4 – ‘Error!’; and

1. Appendix B, clause 5 – ‘Error!’ and incorrect reference to ‘clause 1919’.

2. On Friday, 31 March 2023 the Employer was advised that I would correct the Identified Errors under s 218A of the Act on my own initiative.

1. Section 218A of the Act provides:

Variation of enterprise agreements to correct or amend errors, defects or irregularities

(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; or

(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. Section 218A of the Act is akin to the slip rule found in s 602 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. Section 218A was inserted by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Amendment Act), which received royal assent on 6 December 2022 and commenced in part the following day. Part 17 of Schedule 1 of the Amendment Act commenced on 7 December 2022. In the result s 218A of the Act commenced on that day. Its evident purpose 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. As to the Identified Errors, it is plainly the case that the ‘Error’ reference and a reference to ‘clause 1919’, which does not exist, are typographical drafting errors. The Employer submitted on 10 April 2023 that the errors in Appendix B were due to the types of facilities referred to at Appendix B previously being defined in clause 10 of the Agreement. However, this practice changed and the definitions were deleted from agreements which has caused the ‘Error!’ message as the reference no longer exists.

1. These errors should be corrected by varying the Agreement. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement. I propose to amend the errors identified above and order as such below.

Order

1. I order, pursuant to s 218A of the Act, that the Agreement be amended to correct obvious errors as follows:

1. At clause 27.6(e), delete the words “Error! Reference source not found.”   and insert “57.1”;

2. At Appendix B, clause 3, delete the following words and punctuation:

   a.“either a Low care or Multiple (Dual”;

   b.“, as defined in Clause Error! Reference source not found 10.3.;”; and

   c.“those”.

1. At Appendix B, clause 4, delete the words “Low Care” and “, as defined in Clause Error! Reference source not found 10.3”; and

2. At Appendix B, clause 5, ‘delete the words “Low Care” and “, as defined in Clause Error! Reference source not found 10.3” and delete the incorrect reference to “clause 1919” and insert a reference to “clause 19”.

DEPUTY PRESIDENT

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Annexure A

[1] [2019] FWCFB 318

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