Greater Dandenong City Council

[2023] FWCA 1405

[2023] FWCA 1405

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Greater Dandenong City Council

(AG2023/1120)

GREATER DANDENONG CITY COUNCIL ENTERPRISE AGREEMENT (EA) 2022

Local government administration
COMMISSIONER LEE	MELBOURNE, 16 MAY 2023

Application for approval of the Greater Dandenong City Council Enterprise Agreement (EA) 2022

1. An application has been made for approval of an enterprise agreement known as the Greater Dandenong City Council Enterprise Agreement (EA) 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Greater Dandenong City Council. The Agreement is a single enterprise agreement.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

1. The Australian Nursing and Midwifery Federation, the Australian Municipal, Administrative, Clerical and Services Union and the Association of Professional Engineers, Scientists, and Managers, Australia being bargaining representatives 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 23 May 2023. The nominal expiry date of the Agreement is 30 June 2025.

Variation

1. On 26 April 2023, before the Application was allocated to my Chambers, the Applicant sent an email to the Commission stating they “recently became aware of a number of typographical errors in the proposed Agreement, which appear to have arisen though document version errors. These errors primarily relate to a number of the pay rate calculations in the year two pay table at Appendix E of Part A of the Agreement (see pages 58 and 59) and are mainly an adjustment of a few cents per annum. The only exception to this is at Band 3. While the weekly rates for Band 3 correctly set out the 3.5% pay increases, the hourly and annual rates are incorrect.” The Applicant also noted “that during the bargaining process, two first year rate errors were communicated to the bargaining representatives, but not corrected in the Agreement. The Band 4B annual full-time salary was $0.56 cents incorrect, and the MCH Nurse year 3 weekly full-time salary should be $2,182.91 not $2,192.91.”

1. On 2 May 2023, my Chambers sent correspondence to the Applicant inviting further submissions and offering the employer the opportunity to make an application under s 218A of the Act.

1. On 5 May 2023, the Applicant provided further submissions stating:

“The Applicant, Greater Dandenong City Council, hereby applies to the Fair Work Commission (Commission) under section 218A of the Fair Work Act 2009 (FWA) for the Commission to vary the proposed Greater Dandenong City Council Enterprise Agreement (EA) 2018 (Agreement) to correct the obvious and minor errors in some of the pay rates at Appendix E of the Agreement.

Council submits that:

·   the rates highlighted in the separate copy of Appendix E (attached) do not accurately reflect the wage increases voted up by Council’s staff, particularly the 3.5% pay increase in the second year of the Agreement (which takes effect from the first full pay period on or after 1 July 2023);

·   the incorrectly calculated rates at Appendix E are obvious errors, defects or irregularities because the highlighted rates are clearly inaccurate calculations based the weekly rates, which are correct. For example, the year two band 3A weekly rate is $1,292.99. $1,292.99 divided by the full-time weekly hours of 38 gives an hourly rate of $34.03, not $33.98 as currently set out. $1,292.99 multiplied by 52 weeks is $67,235.62 not $67,146.04 as currently set out (noting that Council’s payroll system uses 4 decimal places but that only 2 decimal places are set out in the Agreement);

·   the two incorrect rates in year one of the Agreement are simple errors which the parties had intended to correct during the negotiations. This intention is shown by the MCH Nurse year 3 rate in the year one wage increase table being correctly set out in the table for year two of the Agreement;

·   the bargaining representatives to the Agreement all consent to the obvious minor errors in rates in the Agreement being corrected by the Commission so as to provide certainty for staff.

Council also submits that the allowance rates for allowances used by Council, contained in Parts A and B of the Agreement, were not updated in the Agreement. These are the actual rates already paid by Council and referred to in Council’s application to have the Commission approve the Agreement. Council submits that this is a minor defect or irregularity in the Agreement. Council has attached an allowance table which sets out these allowances. The ASU is the only bargaining representative affected by this defect and supports this application being made.

Council therefore submits that the obvious errors, defects and irregularities are all of a kind which can be properly corrected by the Commission under s. 218A of the FWA. This would provide an error-free and certain final Agreement for staff.

Council therefore submits a copy of the Agreement with a corrected copy of the pay rates and allowance table included in that Agreement for the Commission’s consideration.”

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. The errors should be corrected by varying Appendix E of the Agreement and the various allowances provided across Part A and Part B of the Agreement.

1. The variations have been inserted into the Agreement between pages 56 and 60. I note, the varied pages are not numbered and span over 5 pages.

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 varying Appendix E, Part A allowances and Part B allowances.

1. The variation will operate from 23 May 2023.

COMMISSIONER

[1]PR761941.

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