Food Standards Australia New Zealand

[2024] FWCA 1193

[2024] FWCA 1193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Food Standards Australia New Zealand

(AG2024/925)

APPLICATION FOR APPROVAL OF THE FOOD STANDARDS AUSTRALIA NEW ZEALAND ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
DEPUTY PRESIDENT MASSON	MELBOURNE, 4 APRIL 2024

Application for variation of the Food Standards Australia New Zealand Enterprise Agreement 2024-2027

1. Food Standards Australia New Zealand (the Applicant) has made an application pursuant to s 218A of the Fair Work Act 2009 (the Act) to vary the Food Standards Australia New Zealand Enterprise Agreement 2024-2027.[1] (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by the Commission on 4 March 2024 and commenced operation on 11 March 2024.[2] The Applicant submits that the Agreement contains errors, defects or irregularities, the details of which are set out and considered below. The Community and Public Sector Union (CPSU), which was a bargaining representative for the Agreement, supports the application.

Statutory Provisions

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) Bill 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows;

“(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. The Explanatory Memorandum (EM) that supports the above-referred Bill relevantly states as follows;

“772. This part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:

·  simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and

·  provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.”

Consideration

1. The variations to the Agreement sought by the Applicant seek to correct typographical errors and are set out below:

“1. Our EA, the Food Standards Australia New Zealand Enterprise Agreement 2024-2027, was approved by FWC on 4 March 2024.

2. We have noticed a typo in the table at Attachment A – Base salaries, p 63.

3. The Salary Level/Pay Point APS3.3 is erroneously listed against two rows of the table. 

4. It should  read:

APS3.4           $70,303          $73,115          $75,893          $78,473

followed by the existing

APS3.3           $67,060          $69,742          $72,392          $74,853.”[3]

1. I am satisfied on reviewing the material that the issues raised by the application constitute genuine typographical errors and that the variations if approved would not alter the intent or substance of the Agreement. In these circumstances I am further satisfied that it is appropriate for the Commission to vary the Agreement to amend the typographical errors. This will ensure that the Agreement is clear on its face and reflects what was intended by the parties.

1. Having regard to the above I am satisfied that it is appropriate for the Agreement to be varied in the following manner:

a)At Attachment A – Base salaries, by deleting the APS 3 classification and replacing it as follows:

Classification	Salary Levels – Pay Points	As at 31 August 2023	From the later commencement of the agreement or 14 March 2024	From 13 March 2025	From 12 March 2026
APS3	APS3.4	$70,303	$73,115	$75,893	$78,473
	APS3.3	$67,060	$69,742	$72,392	$74,853
	APS3.2	$65,400	$68,016	$70,601	$73,001
	APS3.1	$63,746	$66,296	$68,815	$71,155

Conclusion

1. For the reasons set out above, I am satisfied that the typographical errors set out in paragraph [5] to this decision are errors within the meaning of s 218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the employer covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(i) of the Act. The variation sought will operate from 4 April 2024. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

[1] AE523717.

[2] [2024] FWCA 798.

[3] Applicant’s Form F1 - Application (no specific form provided) dated 25 March 2024.

Printed by authority of the Commonwealth Government Printer

<AE523717  PR773116>