Flinders University

[2023] FWCA 2233

[2023] FWCA 2233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Flinders University

(AG2023/2158)

FLINDERS UNIVERSITY ENTERPRISE AGREEMENT 2023 TO 2026

Educational services
COMMISSIONER LEE	MELBOURNE, 20 JULY 2023

Application for approval of the Flinders University Enterprise Agreement 2023 to 2026

1. An application has been made for approval of an enterprise agreement known as the Flinders University Enterprise Agreement 2023 to 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Flinders University. 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 Community and Public Sector Union (CPSU) and the National Tertiary Education Industry Union being bargaining representative 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 27 July 2023. The nominal expiry date of the Agreement is 3 July 2026.

Variation

1. On 11 July 2023, the Applicant made a request under s.218A of the Act, to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity. The Applicant submitted:

“we have noted that the table at Schedule 5, page 72 Clause 5.3 contains a typographic error. Namely, at row 1 column 3 the effective date is stipulated as “42 July 2024”. This appears to be an obvious error or defect within the meaning of section 218A of the Fair Work Act. Flinders University hereby applies for a variation of the Enterprise Agreement to reflect the correct date of 2 July 2024.”

1. Section 218A of the Act came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is as follows:

“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;

(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. Considering s.218A(2)(b)(i) of the Act, the Fair Work Commission may vary an enterprise agreement on application by one or more of the employers covered by the agreement.

1. I am satisfied that the agreement should be varied to correct the obvious error by removing the reference to “42 July 2024” at page 72, Schedule 5, Clause 5.3 and replacing it with 2 July 2024, to reflect the correct date.

1. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement and correct the error.

Order

1. I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error by replacing “42 July 2024” at page 72, Schedule 5, Clause 5.3 with 2 July 2024, to reflect the correct date.

1. The variation will operate from 27 July 2023.

COMMISSIONER

Annexure A

[1] PR764378.

Printed by authority of the Commonwealth Government Printer

<AE520816  PR764376>