Relationships Australia (Qld) Limited T/A Relationships Australia Queensland

[2024] FWCA 1053

[2024] FWCA 1053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Relationships Australia (Qld) Limited T/A Relationships Australia Queensland

(AG2024/462)

RELATIONSHIPS AUSTRALIA (QLD) LIMITED ENTERPRISE AGREEMENT 2023

Social, community, home care and disability services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 25 MARCH 2024

Application for approval of the Relationships Australia (Qld) Limited Enterprise Agreement 2023

Approval

1. An application has been made for approval of an enterprise agreement known as the Relationships Australia (Qld) Limited Enterprise Agreement 2023 (Agreement). The Application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Relationships Australia (Qld) Limited T/A Relationships Australia Queensland (Employer). The Agreement is a single enterprise agreement.

1. The notification time for the Agreement and the date that the Agreement was made post-date 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions and the better off overall test requirements apply to this approval application.[1]

1. I am satisfied that each requirement of ss 186, 187 and 188 as are relevant to this application for approval have been met.

1. The Australian Municipal, Administrative, Clerical and Services Union being a bargaining representative for the Agreement supports the approval of the Agreement and has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act will operate from 1 April 2024. The nominal expiry date of the Agreement is 1 April 2027.

Variation

1. By way of correspondence to Chambers dated 7 March 2024, the Employer made an application pursuant to s 218A of the Act to correct a typographical error that incorrectly duplicates the subclause number “37.5” for both clause 37.5 and clause 37.6 of the Agreement. The substantive content of the clauses does not require a variation.

1. The employee bargaining representatives were provided with an opportunity to address the s 218A application. No submissions were made.

1. Section 218A of the Act was inserted by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 to provide a process for varying an enterprise agreement to “correct or amend an obvious error, defect or irregularity,” whether in substance or form. It provides as follows:

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.

(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. Before an enterprise agreement may be varied under s 218A of the Act, there must be satisfaction of the existence of an obvious error, defect or irregularity (whether in substance or form).

1. I accept that the duplication of the subclause numbering is an obvious error in form. The two subclauses bearing the same numbering provide for different entitlements. Under clause 37, there are six subclauses. The structure of the Agreement contemplates individual numbering for subclauses, and the use of lettered lists for sub-subclauses.

1. The exercise of the Commission’s discretion is directed to “correct or amend” the obvious error identified. I consider the error identified is of a kind that may be corrected by varying the Agreement to change the second reference to “37.5” on page 24 of the Agreement to read “37.6”.

1. I consider that the correction proposed by this application is necessary and appropriate to ensure that the Agreement accurately reflects what was clearly intended, and will provide certainty when referring to provisions of the Agreement. There are no grounds telling against the exercise of my discretion to vary the Agreement to correct the errors.

1. Accordingly, the error will be corrected in the manner sought and as specified in the order that follows. The order will operate from the date of this decision.

Order

1. Pursuant to s 218A of the Act, I order that the Agreement be varied to correct an obvious error as follows:

(1)   By deleting the second reference to the number “37.5” on page 24 of the Agreement, and replacing it with “37.6”.

(2)   The variation will operate from 25 March 2024.

1. The published Agreement will contain the correction described in the above order.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) broadly commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. The transitional arrangements under the Amending Act are not applicable to the present application.

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