Queensland Police-Citizens Youth Welfare Association T/A PCYC Queensland
[2024] FWCA 3149
•2 SEPTEMBER 2024
| [2024] FWCA 3149 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Queensland Police-Citizens Youth Welfare Association T/A PCYC Queensland
(AG2024/3040)
QPCYWA ENTERPRISE AGREEMENT 2024
| Children's services | |
| COMMISSIONER HUNT | BRISBANE, 2 SEPTEMBER 2024 |
Application for variation of the QPCYWA Enterprise Agreement 2024
The QPCYWA Enterprise Agreement 2024 (the Agreement) was approved by the Fair Work Commission (the Commission) on 18 July 2024. The United Workers’ Union (UWU) is an employee organisation covered by the Agreement.
The Queensland Policy Citizens Youth Welfare Association (QPCYWA/the Employer) has made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the QPCYWA Enterprise Agreement 2024 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement. In the alternative, the Employer makes the application pursuant to s.602(2) of the Act for the Commission to correct or amend an obvious error, defect or irregularity in relation to the Decision.
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.”
Reason for the application
The Agreement was approved by me with undertakings provided by the Employer, after the Commission had informed the Employer that it held concerns in respect of a number of matters, including pertaining to the Better Off Overall Test (BOOT). With respect to minimum hours for part-time workers, the following correspondence was sent from my chambers based on an assessment completed by the Commission’s Agreement Team:
“Part-time – minimum engagement: All respective awards provide for a minimum engagement for part-time employees as follows
Admin, Passenger Vehicle, Fitness Industry, Hospitality and Childrens’ Services Awards: Min 3 hours”
As it turns out, the Children’s Services Award 2010 provides for a minimum engagement of two hours for part-time employees, not three hours.
Ms Lisa Tarrant, People and Performance Senior Advisor made a witness statement in respect of this application. She stated that based on the Commission’s concerns, and meeting with management colleagues, the Employer was content to provide the following relevant undertaking:
“Part-time Employees will be rostered for a minimum of three (3) consecutive hours on a shift.”
At the time, Ms Tarrant informed the Commission of the following:
“The Applicant submits it does not roster any Part-time Employee for less than 3 consecutive hours on a shift.”
Ms Tarrant made the submission above and gave the relevant undertaking on behalf of the Employer because she had formed the view and understanding that it was correct and consistent with current roster practices. As I understand it, she had not determined if the Commission’s concerns, where it had been put that the minimum engagement was three hours, was correct or not.
One day following approval of the Agreement, Ms Tarrant informed a senior manager that the Agreement had been approved and provided the undertakings that had been given. The senior manager informed her that across many Out of School Hours Care (OSHC) locations run by the Employer, they are typically open for two hours, and it would not be feasible to provide a minimum three-hour engagement for part-time employees. Any requirement to do so would have a significant impact on the financial viability of some OSHC services.
The senior manager stated that if the undertaking was now a requirement, it may result in only casual employees being able to be rostered for the work where it was of less than three hours duration.
Ms Tarrant then learned that the Children’s Services Award 2010 has a two-hour minimum engagement for part-time employees.
The Employer submits that the impact of the error of including the undertaking referring to three hours instead of two hours is that:
a)there is no work for the OSHC employee to perform for the excess one hour; and
b)the Employer will only be able to engage casual employees to undertake this work.
The Employer submitted that the undertaking is an error or defect because for OSHC part-time employees the term was:
a)not required to address any better off overall concerns because under clause 10.4(e) of the Children's Services Award 2010 an employer is required to roster a part-time employee for a minimum of two consecutive hours on any shift; and
b)given on the basis of the concern incorrectly identified by the Commission that the Children's Services Award 2010 required an employer to roster a part-time employee for a minimum of three consecutive hours on any shift; and
c)not a term agreed by employees covered by the Agreement in making the Agreement.
Variation sought
The Employer seeks for the Commission to order:
“Undertaking [1], as taken to be a term of the Agreement, be varied as follows:
Minimum engagement
1. Part-time employees will be rostered for a minimum of:
(a) two (2) consecutive hours on a shift for OSHC Employees; and
(b) three (3) consecutive hours on a shift for all other Employees.”
The UWU was invited to provide its views in respect of the application. On 27 August 2024, the UWU advised that it did not have any views in respect of the application.
Consideration
In the recent decision of Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026,[1] 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)
In the present case, the Agreement contains an error through the undertaking the Commission required the Employer to give, which was unnecessary. The error made by the Commission was compounded by the error made by the Employer in confirming that it did not roster OSHC Employees for less than three hours, which is now proven to be incorrect.
I am satisfied that the undertaking given was an error of substance, falls within the scope of s.218A(1) and arose during the approval process.
Such an application is not capable of being determined pursuant to s.602 of the Act, as per the Full Bench decision in Advantaged Care.
Conclusion
For the reasons set out above, I am satisfied that the error contained in Agreement 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, thus satisfying the requirements of s.218A(2)(b)(i) of the Act. The variation sought will operate from the date the Agreement was approved, being 18 July 2024. An order giving effect to this decision will be separately issued.
COMMISSIONER
[1] [2022] FWCA 4390.
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