Fairview Village Limited T/A Fairview Homes For The Aged Inc

[2024] FWCA 3207

[2024] FWCA 3207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fairview Village Limited T/A Fairview Homes For The Aged Inc

(AG2024/3009)

FAIRVIEW VILLAGE LTD, ANMF AND HWU ENTERPRISE AGREEMENT 2024

Aged care industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 6 SEPTEMBER 2024

Application for approval of the Fairview Village Ltd, ANMF and HWU Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Fairview Village Ltd., ANMF and HWU Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fairview Village Limited T/A Fairview Homes for The Aged Inc. The Agreement is a single enterprise agreement.

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 (ANMF) and the Health Services Union (HSU) 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. The ANMF and the HSU support approval of the Agreement.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 September 2024. As set out below, the nominal expiry date of the Agreement is 30 June 2028.

Variation

1. The Agreement lodged contained an error in clause 6, referring to the nominal expiry date of the Agreement as being 30 June 2024.

1. On 4 September 2024, my chambers wrote to the parties noting the error and sought submissions in relation to this issue. Following receipt of the Applicant’s submissions, I advised the Applicant that I intended to amend clause 6 on my own initiative pursuant to s.218A of the Act. No objection was received.

1. Section 218A, which came into effect on 7 December 2022, is as follows:

“218A 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. As has been noted in recent decisions[1] of the Commission, 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. 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. 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. I am satisfied that the nominal expiry date in clause 6 of the Agreement is an obvious error. While section 218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied that the amendment to the clause 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 error is readily identified, as is the correction needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The reference to the nominal expiry date of the Agreement will be amended to read ’30 June 2028”, as ordered below.

Order

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

1. By deleting “30 June 2024” in clause 6 of the Agreement, and replacing it with “30 June 2028.”

2. The variation will operate from 13 September 2024.

DEPUTY PRESIDENT

Annexure A

[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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