Georgina Martina Inc.
[2024] FWCA 1381
•17 APRIL 2024
| [2024] FWCA 1381 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Georgina Martina Inc.
(AG2024/793)
GEORGINA MARTINA INC. SOCIAL AND COMMUNITY SERVICES EMPLOYEES ENTERPRISE AGREEMENT 2022 – 2025
| Social, community, home care and disability services | |
| COMMISSIONER SIMPSON | BRISBANE, 17 APRIL 2024 |
Application for variation of the Georgina Martina Inc. Social and Community Services Employees Enterprise Agreement 2022 – 2025
Georgina Martina Inc. (the Employer) has made an application to vary the Georgina Martina Inc. Social and Community Services Employees Enterprise Agreement 2022 – 2025 (the Agreement). The application was made under s.218A of the Fair Work Act 2009 (the Act). The Agreement was approved by me on 19 September 2022 and commenced operation on 26 September 2022. The application sought to amend the nominal expiry date of the Agreement from 30 June 2024 to 30 June 2025.
Section 218A of the Act provides as follows:
“218A 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.”
The matter was allocated to me, and I directed the employer file evidence demonstrating that at the time the Agreement was made, the employees of the Employer understood the Agreement would have a nominal expiry date of 30 June 2025.
On 11 April 2024, the Employer filed material in support of its contention that the inclusion of a nominal expiry date of 30 June 2024 in clause 5 of the Agreement was the result of human error. The Employer raised a number of points in this material.
Firstly, the Employer stated that in its original form, the Agreement was dated 2021 – 2024. Given the delays that were experienced in bargaining, the Agreement was not approved until 2022, and the date on the front and in the footer of the Agreement were changed accordingly. However, the corresponding amendment to the nominal expiry date was inadvertently neglected. In correspondence I issued to the Employer on 13 July 2022, following the Employer’s application for approval of the Agreement, I identified the apparent discrepancy between the date included in the title of the Agreement and the nominal expiry date in clause 5. In response to this concern, on 3 August 2022, the Employer noted that clause 5 of the Agreement “should state “shall remain in force until 30th June 2025””.
Secondly, following my direction on 25 March 2024, the Employer submitted that it asked, via email, each of the ten employees that were employed at the time the Agreement was made whether they considered that the nominal expiry date was 30 June 2025. Eight employees responded that they understood the nominal expiry date was 30 June 2025, one employee was unable to answer as they could not remember, and another employee stated that they did not understand the expiry date was 30 June 2025.
Finally, the Employer provided copies and accounts of communications between the Employer and its employees, where employees were informed that the proposed Agreement was to be for a term of 3 years and that the name of the Agreement indicated that it would operate from 2022 until 2025.
Having considered the material filed by the Employer, I am satisfied that the clause 5 of the Agreement, insofar as it states that the nominal expiry date of the Agreement is 30 June 2024, is an obvious error in substance within the meaning of s.218A(1) of the Act. The material provided by the Employer, and the text of the Agreement itself, support a view that the Agreement was intended to operate until 2025, the nominal expiry date was intended to be 30 June 2025, and the employees understood this to be the case. The duration of the Agreement was reasonably explained to employees, such that they understood that, given the delays in bargaining, the nominal expiry date of the Agreement was to be 30 June 2025 instead of the originally contemplated 30 June 2024. It is clear that the Employer also understood the nominal expiry date to be 30 June 2025, but due to its oversight, this was not reflected in clause 5. While the material filed by the Employer seems to indicate that one employee did not understand the expiry date was 30 June 2025, I am satisfied that on an objective basis, having regard to the discussions that took place during bargaining, this understanding was reasonably conveyed and ought to have been held by all employees.
Conclusion
For the reasons set out above, I am satisfied that clause 5 was an error within the meaning of s.218A(1) of the Act. The application to vary the Agreement was made by an employer covered by the Agreement, in accordance with s.218A(1)(b)(i). The variation sought by the Employer will operate from the date the Agreement commenced, being 26 September 2022. An order giving effect to this decision will be separately issued.
COMMISSIONER
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