Re Adeney Private Hospital Pty Ltd Trading As Adeney Private Hospital

[2023] FWCA 402

[2023] FWCA 402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Re Adeney Private Hospital Pty Ltd Trading As Adeney Private Hospital

(AG2023/270)

ADENEY PRIVATE HOSPITAL NURSES GREENFIELDS AGREEMENT 2022

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 9 FEBRUARY 2023

Application for variation of the Adeney Private Hospital Nurses Greenfields Agreement 2022

1. Adeney Private Hospital Pty Ltd T/A Adeney Private Hospital (the Applicant) has written to Chambers by email requesting that the record of the Adeney Private Hospital Nurses Greenfields Agreement 2022 (the Agreement) on the Fair Work Commission website be updated to reflect the final version of the Agreement. Taking this correspondence into consideration and pursuant to s.218A(2)(a) Fair Work Act 2009 (the Act), I have determined to vary the Agreement on my own initiative.

1. The Agreement was approved by the Commission on 18 January 2023 and commenced operation on 25 January 2023[1]. The Applicant is the Employer covered by the Agreement.[2] The Australian Nursing and Midwifery Federation (ANMF) are covered by the Agreement. The Applicant submits that the Agreement contains an obvious error, defect or irregularity, the details of which are set out below.

1. On 6 February 2023, the Applicant has also confirmed that the ANMF is supportive of the proposed variations to the Agreement. Both parties are content for the mater to be determined on the basis of the material filed.

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 states 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 correct APPENDIX 3, pages 47 and 48 of the Agreement by replacing the word “Epworth” with “the Employer” under subheadings “Clinical and Educational Objectives” and “Maintenance of Enrolled Nurse Specialist Classification” (the Subheadings).

1. The Applicant submits that when preparing the Agreement for approval, there was an error in the version that was lodged with the Commission. The Applicant submits that therefore the Agreement contains a drafting error as contemplated by s.218A of the Act.

1. As Deputy President Masson recently observed in Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026 [2022] FWCA 4390,

“[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[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.

[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.

1. In the present case the contended error is that of incorrectly referring to a previous employer during the Agreement drafting process.

1. The contended error which was not identified until after the Agreement was approved is arguably an error of substance and omission. A demonstrated error of omission would in my view fall within the scope of s. 218A(1).

1. Having regard to the above, I am satisfied that the inadvertent error in referring to a previous employer was an error that arose during drafting of the Agreement prior to approval.

Conclusion

1. For the reasons set out above, I am satisfied that the error contained in APPENDIX 3, pages 47 and 48 is an error within the meaning of s. 218A(1) of the Act. I am further satisfied that my determination to vary the Agreement on my own initiative pursuant to the request made by the Applicant by email to Chambers satisfies the requirements of s. 218A(2)(a) of the Act. The variation sought will operate from 9 February 2023. An order giving effect to this decision will be separately issued.

COMMISSIONER

[1] [2023] FWCA 174.

[2] Agreement, clause 3. (a).

[3] [2021] FWCFB 453

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