Queensland Symphony Orchestra Pty Ltd

[2023] FWCA 2289

[2023] FWCA 2289

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Queensland Symphony Orchestra Pty Ltd

(AG2023/2431)

QUEENSLAND SYMPHONY ORCHESTRA MUSICIANS' AGREEMENT 2023-2024

Live performance industry
COMMISSIONER JOHNS	MELBOURNE, 25 JULY 2023

Application for variation of the Queensland Symphony Orchestra Musicians’ Agreement 2023-2024

1. Queensland Symphony Orchestra Pty Ltd (Applicant) has made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the QUEENSLAND SYMPHONY ORCHESTRA MUSICIANS' AGREEMENT 2023-2024 (Agreement) to correct or amend an error, defect or irregularity in the Agreement (Application).

1. The Agreement was approved by the Fair Work Commission (Commission) on 22 December 2022 and commenced operation on 29 December 2022.[1] The Applicant is the employer covered by the Agreement.[2] The Applicant submits that the Agreement contains a typographical error.

1. The bargaining representatives to the Agreement were the Media, Entertainment and Arts Alliance (MEAA) and an employee bargaining representative. The MEAA is covered by the Agreement.

1. On 20 July 2023, the bargaining representatives of the Agreement were invited to advise the Commission if they have any objections to the Application by 4PM (Melbourne time) on 25 July 2023. The Parties were also put on notice that in the event of no objections being received, the Commission would determine the application on the material before it without further notice.

1. On 24 July 2023, the MEAA noted that it has no objections to the Application.

1. The employee bargaining representative did not raise any objections by the deadline provided.

Statutory Provisions

1. Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly 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) that supports the above-referred Bill relevantly stated as follows:

“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

1. The Applicant seeks to vary Part D1.1 so that the minimum rate payable in the table for a section Musician, 7^th year, to read as $85,159 rather than $95,159, effective 1^st Jan 2024. The Applicant submitted that this is an obvious error as a 3% increase from the previous figure of $82,679 is clearly $85,159. And accordingly, the Agreement contains a drafting error of the kind contemplated by s.218A of the Act.

1. 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[3] (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. 210 or 217, might be used to rectify such error, defect or irregularity.

1. 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.

1. In the present case the contended error is that of a typographical error and is indeed an obvious one.

Conclusion

1. For the reasons set out above, I am satisfied that the error contained in Part D1.1 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 covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(i) of the Act. The variation sought will operate from 25 July 2023. An order giving effect to this decision will be separately issued [PR764532].

COMMISSIONER

[1] [2022] FWCA 4566.

[2] Agreement, clause A3.

[3] [2021] FWCFB 453.

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<AE518715  PR764531>