Gateways Support Services Inc

[2024] FWCA 3312

[2024] FWCA 3312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gateways Support Services Inc

(AG2024/2983)

GATEWAYS SUPPORT SERVICES INC RESIDENTIAL SUPPORT WORKERS ENTERPRISE AGREEMENT 2023

Social, community, home care and disability services
COMMISSIONER YILMAZ	MELBOURNE, 19 SEPTEMBER 2024

Application for approval of the Gateways Support Services Inc Residential Support Workers Enterprise Agreement 2023

Approval

1. An application has been made for approval of an enterprise agreement known as the Gateways Support Services Inc Residential Support Workers Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gateways Support Services Inc (the Employer or Applicant). 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, 193 and 193A as they are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. I observe that clause 46.2 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Health Services Union Victoria No. 2 Branch T/A Health and Community Services Union (HACSU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. The Agreement is approved and in accordance with s.54, will operate from 26 September 2024. The nominal expiry date of the Agreement is 30 August 2027.

Variation

1. The Applicant also made an application pursuant to s.218A of the Act to correct or amend a minor drafting error in respect of the default superannuation fund in clause 24.5. The clause incorrectly states ‘Australian Super’ as the Employer’s default fund, however, the default superannuation fund of the Employer is ‘HESTA Super Fund’.

1. Section 218A 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. 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,  it allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in an enterprise agreement. The purpose of the section is to remove the complexity associated with varying enterprise agreements which contain an obvious error, defect or irregularity by creating a simpler process for corrections to be made. 

1. Before an amendment under s.218A can be made, the Commission must first be satisfied that an obvious error, default or irregularity (whether in substance or form) exists. If it is found that such an error, default of irregularity exists, the Commission may vary the agreement.

1. The Applicant submits ‘This drafting error has likely occurred when a lawyer external to Gateways was creating the initial draft of the agreement. It is likely this lawyer was unaware of the staple fund, and Gateways Support Services did not notice this error throughout the review of the draft agreement.’

1. They further submit:

“• This change will have minimal impact on Gateways Support Services employees as HESTA Super Fund is the current default superannuation fund.

·   Australian Super has never been the default fund of covered employees and therefore correcting the error will not adversely impact anyone.

·   Switching the default superannuation fund to Australian Super will significantly impact Gateways Support Services. This change will necessitate the organisation to maintain multiple default superannuation funds across different business areas, rather than having a single fund for all employees and industrial agreements.

·   HACSU are supportive of this this request and agree that this is an obvious error.”

1. For the reasons set out above, I am satisfied that the error in clause 24.5 is an error 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.

1. The variation sought will operate from the date the Agreement commences operation, 26 September 2024.

Order

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

·   In clause 24.5 the words “Australian Super” are deleted and replaced with “HESTA Super Fund”.

1. The variation will operate from 26 September 2024. The published Agreement will contain the corrections as described above.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR779429  AE526119>

Annexure A