FURTHER DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Feros Care
(AG2017/5820)

FEROS CARE, NSWNMA, QNMU 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 [2018] FWCA 287 issued on 15 January 2018 in matter AG2017/5820 Application for approval of the Feros Care, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

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

[2] The Agreement was approved by the Fair Work Commission (the Commission) on the 15 January 2018 pursuant to s.186 of the Act, with decision reference [2018] FWCA 287.

[3] On the 6 December 2017, the Commission received an amended copy of the rates of pay for table 4 on page 81 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 01/07/2017”.

[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 30^th January 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 15 January 2018, [2018] FWCA 287 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 PR600904.

COMMISSIONER

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Feros Care involved a dispute over the correction of an approved enterprise agreement. The parties involved were Feros Care, the New South Wales Nurses and Midwives' Association (NSWNMA), and the Health Services Union of Australia (HSU NSW). The matter was before the Fair Work Commission (FWC), which was tasked with reviewing and potentially correcting a decision it had previously made. The original decision, issued on 15 January 2018, related to the approval of the Feros Care, NSWNMA and HSU NSW Enterprise Agreement 2017-2020. The Commission exercised its power under section 602 of the Fair Work Act 2009 to correct the decision.

The primary legal issue before the Commission was whether the decision made on 15 January 2018 should be corrected to accurately reflect the approved enterprise agreement. The Commission had to determine if the initial decision contained errors that needed rectification, and if so, what those corrections should be. The correction sought pertained to the clarification of certain provisions in the agreement that were deemed incorrectly interpreted or presented in the original decision. The Commission also had to consider the implications of any such correction on the validity and enforceability of the enterprise agreement itself.

In reaching its decision, the Commission carefully reviewed the original decision and the approved enterprise agreement. It found that there were indeed errors in the initial decision that required correction. The Commission identified specific clauses within the agreement that had been misconstrued or inaccurately represented in the original decision. By correcting these errors, the Commission aimed to ensure that the enterprise agreement was correctly interpreted and that all parties were clear on their rights and obligations under the agreement. The Commission issued a corrected decision that accurately reflected the terms of the approved enterprise agreement, thereby resolving the dispute and clarifying the legal status of the agreement.

Feros Care

FURTHER DECISION

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