Hills International College Limited T/A Hills College/Hills International College/Hills Language College
[2025] FWCA 196
•17 JANUARY 2025
| [2025] FWCA 196 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Hills International College Limited T/A Hills College/Hills International College/Hills Language College
(AG2025/57)
HILLS INTERNATIONAL COLLEGE LIMITED ENTERPRISE AGREEMENT 2024
| Educational services | |
| COMMISSIONER HUNT | BRISBANE, 17 JANUARY 2025 |
Variation of the Hills International College Limited Enterprise Agreement 2024
The Hills International College Limited Enterprise Agreement 2024 (the Agreement) was approved by the Fair Work Commission (the Commission) on 13 January 2025.[1]
The Agreement approval application was allocated to me. After approval, on 13 January 2025, it was brought to my attention that the title clause of the Agreement in Clause 1.1 stated as follows:
“1.1 Title
This Agreement shall be known as the Hills College Limited Enterprise Agreement 2024.”
The materials lodged with the Agreement approval application, including the Form F16 and Form F17B, as well as the Agreement itself, refer to the title of the Agreement as being the Hills International College Limited Enterprise Agreement 2024. It appears that the only instance in which the Agreement, or any supporting material, omits the word “International” from the title is the title clause in Clause 1.1. Accordingly, I formed the preliminary view that the reference to the title of the Agreement being the “Hills College Limited Enterprise Agreement” 2024 was an error.
Shortly after the Agreement approval decision was published, I corresponded with the parties, advising them of my preliminary view in relation to Clause 1.1 of the Agreement, and sought their views as to whether the Commission should exercise its powers under s.218A of the Fair Work Act 2009 (the Act) to vary the Agreement to correct an obvious error, defect or irregularity. The same day, Hills International College Limited T/A Hills College/Hills International College/Hills Language College (the Employer), and the Independent Education Union of Australia (IEU), being a bargaining representative for the Agreement, each advised that they agreed with my preliminary view in relation to Clause 1.1 of the Agreement and the proposal to vary the Agreement pursuant to s.218A of the Act.
Relevant Legislation
Section 218A came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. It 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.”
Consideration
In the decision of Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026,[2] Deputy President Masson observed as follows:
“[9] It is apparent from the text of s. 218A and the supporting EM that s. 218A is intended to overcome the statutory limitation imposed by s.602 of the Act that was most recently identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union (Advantaged Care). In that decision the Full Bench confirmed that the Commission could not amend the text of an agreement to correct an obvious error, defect or irregularity pursuant to s.602 of the Act and that other provisions within the Act, ss.201 or 217, might be used to rectify such error, defect or irregularity.
[10] There are limitations to the use of ss. 210 and 217 of the Act in varying an agreement to address an obvious error, defect or irregularity. For example, it may be considered costly and impractical to conduct a ballot of employees for the purpose of obtaining approval for the variation of an agreement pursuant to s. 210 of the Act, where the variation sought is not substantive. Section 217 might also not be amenable to correcting an obvious error, defect or irregularity where the error does not create uncertainty or ambiguity. It is accepted that s. 218A confers an additional discretion for the Commission to amend an error, defect, or irregularity in an agreement, be that in form or substance.” (footnotes omitted)
The contended error is that Clause 1.1 of the Agreement refers to the Agreement as the “Hills College Limited Enterprise Agreement 2024”, instead of the title seemingly agreed to by the parties, being the “Hills International College Limited Enterprise Agreement 2024”.
Having regard to the material lodged with the Agreement, the Agreement itself, which refers to the Agreement as the Hills International College Limited Enterprise Agreement 2024 on the cover page and in the footer of almost every other page thereafter, and the views of the parties, I am satisfied that the omission of the word “International” from Clause 1.1 of the Agreement is an obvious technical or administrative error that occurred during drafting and would fall within the scope of s.218A(1).
Conclusion
For the reasons set out above, I am satisfied that the error contained in Clause 1.1 of the Agreement is an obvious 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 Commission at its own initiative, thus satisfying the requirements of s.218A(2)(a) of the Act. The variation sought will operate from the operative date of the Agreement, being 20 January 2025. An order giving effect to this decision will be separately issued.
COMMISSIONER
[1] [2025] FWCA 109
[2] [2022] FWCA 4390.
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