Skin Health Institute Inc T/A Skin Health Institute
[2025] FWCA 661
•20 FEBRUARY 2025
| [2025] FWCA 661 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Skin Health Institute Inc T/A Skin Health Institute
(AG2025/338)
SKIN HEALTH INSTITUTE AND THE AUSTRALIAN NURSING AND MIDWIFERY FEDERATION ENTERPRISE AGREEMENT 2024
| Health and welfare services | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 20 FEBRUARY 2025 |
Application for variation of the Skin Health Institute and the Australian Nursing and Midwifery Federation Enterprise Agreement 2024
Skin Health Institute Inc T/A Skin Health Institute (the Applicant) has applied pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Skin Health Institute and the Australian Nursing and Midwifery Federation Enterprise Agreement 2024 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Commission on 20 January 2025 and commenced operation on 27 January 2025. The Applicant is the employer covered by the Agreement. The Australian Nursing and Midwifery Federation (ANMF) is covered by the Agreement.
A Form F1 was lodged with the Applicant which sought to vary a provision of the Agreement pursuant to section 218A of the Act (the Form).
The Form highlighted an error within the Agreement at clause 24(b)(iii) in relation to parental leave as follows:
“13 weeks” be amended to “14 weeks”
I am satisfied that s.218A applies to the variations at paragraph 4 of this Decision.
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) Act 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:
“(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.”
As has been noted in recent decisions of the Commission,[1] s.218A of the Act is akin to the slip rule found in s.602 of the Act, which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The evident purpose of s.218A is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.
Before an amendment under s.218A can be made, there first must be satisfaction of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.
The Applicant submits that the amendments seek to address a typographical error at clause 24(b)(iii) for paid parental leave and submits that the clause as it currently reads, does not reflect the Agreement reached with the ANMF that paid parental leave would increase to 14 weeks from the first full pay period on or after 1 July 2026. In support of its application, the Applicant filed a copy of the explanatory document and the ANMF Newsflash dated 11 November 2024 issued to employees, which states that paid parental/adoption leave would increase to 14 weeks from the first full pay period on or after 1 July 2026.
On 18 February 2025, my chambers wrote to the ANMF, seeking their views in relation to the application. The ANMF advised that it supports the application.
I am satisfied that the error in the Agreement outlined at paragraph 4 of this Decision is an obvious error. I am satisfied the amendment should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the errors are readily identified, and are the corrections needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The errors identified at paragraph 4, will be amended as per the order.
Order
I order, pursuant to s.218A of the Act, that clause 24(b)(iii) be amended as follows:
“13 weeks” is deleted and replaced by “14 weeks”
The variations pursuant to s.218A above will operate from 27 January 2025.
DEPUTY PRESIDENT
[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).
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