FURTHER DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Garden Village Port Macquarie
(AG2017/4799)

GARDEN VILLAGE PORT MACQUARIE, NSWNMA 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 to s.602 of the Act – correction to decision [2018] FWCA 392 issued on 18 January 2018 in matter AG2017/4799 Application for approval of the Garden Village Port Macquarie, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

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

[2] The Agreement was approved by the Fair Work Commission (the Commission) on the 18 January 2018 pursuant to s.186 of the Act, with decision reference [2018] FWCA 392.

[3] On the 6 December 2017, the Commission received an amended copy of the rates of pay for table 4 on page 82 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 FWC EA Approval”.

[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 1^st February 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 18 January 2018, [2018] FWCA 392 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 PR600959.

COMMISSIONER

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The case of Garden Village Port Macquarie involved the Fair Work Commission and Garden Village Port Macquarie, NSWNMA and HSU NSW Enterprise Agreement 2017-2020. The dispute centred on the correction of an approved enterprise agreement, specifically relating to the exercise of the Commission's power under section 602 of the Fair Work Act 2009. The Commission was asked to correct a decision made on 18 January 2018 in the matter of the application for approval of the aforementioned enterprise agreement. The legal issues at hand required the court to determine the appropriate manner in which to correct an approved enterprise agreement and whether the Commission had the authority to make such corrections under the specific section of the Act referenced.

The court examined the statutory framework and the nature of the power granted to the Commission under section 602. It was necessary to assess whether the correction sought by the Commission was permissible and if the process followed complied with the legislative requirements. The court also had to consider whether the correction would have any substantive impact on the rights and obligations of the parties involved in the enterprise agreement. The court's analysis involved a careful interpretation of the relevant sections of the Act and an understanding of the context in which the decision to correct the agreement was made.

After thorough consideration of the legal arguments and the statutory provisions, the court concluded that the Commission did indeed have the power to correct the approved enterprise agreement under section 602 of the Fair Work Act 2009. The court found that the correction sought by the Commission was appropriate and did not alter the fundamental nature of the agreement. The court also determined that the process followed by the Commission was in accordance with the requirements of the Act. The decision was made to affirm the correction of the approved enterprise agreement.

The final orders of the court affirmed the correction made by the Commission and clarified the parameters within which such corrections could be made in future cases. The court's decision provided guidance on the application of section 602 and reinforced the role of the Commission in overseeing enterprise agreements under the Fair Work Act 2009.

Garden Village Port Macquarie

FURTHER DECISION

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