South Coast Baptist College Incorporated

[2024] FWCA 1385

[2024] FWCA 1385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

South Coast Baptist College Incorporated

(AG2023/5533)

APPLICATION FOR APPROVAL OF THE SOUTH COAST BAPTIST COLLEGE OPERATIONAL STAFF AGREEMENT 2024

Educational services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 18 APRIL 2024

Application for approval of the South Coast Baptist College Operational Staff Agreement 2024

Approval

1. South Coast Baptist College Incorporated (Employer) has applied under s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the South Coast Baptist College Operational Staff Agreement 2024 (Agreement).

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings meet my concern that the Agreement did not meet all the approval requirement,[1] that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Independent Education Union being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) 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 25 April 2024. The nominal expiry date of the Agreement is 25 April 2027.

Variation

1. The Employer also applies under s 218A of the Act for the Commission to vary the Agreement to correct or amend the items listed in Annexure B.

1. Section 218A of the Act provides:

“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.

(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. Section 218A of the Act is akin to the slip rule found in s 602 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. Section 218A was inserted by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Amendment Act), which received royal assent on 6 December 2022 and commenced in part the following day. Part 17 of Schedule 1 of the Amendment Act commenced on 7 December 2022. In the result s 218A of the Act commenced on that day. Its evident purpose 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.

1. The errors identified in Annexure B are inadvertent errors, defects or irregularities.

1. The errors in Annexure B should be corrected by varying the Agreement in the manner proposed in Annexure B. No affected employees or employee organisations have raised any concerns with the employer’s variation application. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement. I propose to amend the errors identified in Annexure B and order as such below.

Order

1. I order, pursuant to s 218A of the Act, that the South Coast Baptist College Operational Staff Agreement 2024 (Agreement) be amend as set out in Annexure B.

1. A copy of the Agreement incorporating the amendments made by the order can be found at the end of the Agreement which I have earlier approved.

1. The variation will operate from 25 April 2024.

DEPUTY PRESIDENT

Annexure A

Annexure B

[1] See Re South Coast Baptist College Incorporated[2024] FWC 888.

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