Melbourne IVF Pty Ltd

[2024] FWCA 3089

[2024] FWCA 3089

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Melbourne IVF Pty Ltd

(AG2024/2817)

MELBOURNE IVF NURSES ENTERPRISE AGREEMENT 2023

Health and welfare services
COMMISSIONER ALLISON	MELBOURNE, 30 AUGUST 2024

Application for variation of the Melbourne IVF Nurses Enterprise Agreement 2023

1. Melbourne IVF Pty Ltd (the Applicant) has made an application (the Application) pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the Melbourne IVF Nurses Enterprise Agreement 2023[1] (the Agreement), to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by the Commission on 2 July 2024 and commenced operation on 9 July 2024.[2] The Australian Nursing and Midwifery Federation (ANMF) is a bargaining representative to the Agreement.

1. The Applicant contends that the Agreement contains errors in relation to several rates of pay, for Enrolled Nurses classifications 2.1 through 3.2, and for Nurse Unit Managers. The relevant rates of pay are provided in tables in Appendix 1 of the Agreement.

1. For Enrolled Nurses, the Applicant submits that the pay rates in the column titled “Current Rates” were intended to be in the following column titled “FFPPOA 1.11.23.” This column misalignment flows through to the pay rates in other years. In the final column titled “FFPPOA 1.11.26”, the pay rates erroneously regress to the values contained in the “Current Rates.”

1. The application contends that the rates of pay for Nurse Unit Managers failed to include a 4-cent laundry allowance.

1. Following receipt of the application, my Chambers issued correspondence to the ANMF, seeking its view as to whether it supported the application.

1. The ANMF supports the application. The ANMF agrees that if the amendment is not made, Enrolled Nurses will be worse off under the Agreement following the final scheduled wage increase in the Agreement. The ANMF also accepts that the agreement once varied would be consistent with what was agreed in bargaining and understood by the ANMF’s members when explaining agreed wage increases over the life of the Agreement.

Statutory Provisions

1. Section 218A of the Act 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. The Explanatory Memorandum (EM) supporting the insertion of s.218A into the Act relevantly states as follows:[3]

“772. This part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:

·simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and

·   provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.”

Consideration – should the Agreement be amended?

1. The variation sought by the Applicant is to amend errors in the pay rates in Appendix 1 of the Agreement. 

1. The Applicant’s views are supported by the ANMF, as outlined in paragraphs [3] to [7] above. In these circumstances I am satisfied that it is appropriate for the Commission to vary the Agreement to replace the incorrect pay rates in Appendix 1 as intended by the parties.

1. I am satisfied that the errors that occurred in drafting Appendix 1 are errors that fall 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, in accordance with s.218A(2)(b)(i) of the Act. The variation will operate from 30 August 2024. An Order[4] giving effect to the variation is issued separately.

COMMISSIONER

[1] AE525265.

[2] [2024] FWCA 2439.

[3] Explanatory Memorandum, Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth), 772.

[4] PR778739.

Printed by authority of the Commonwealth Government Printer

<AE525265  PR778602>