St Andrew’s Village Ballina Ltd

[2018] FWC 2358

FAIR WORK COMMISSION

FURTHER decision

Fair Work Act 2009

s.185—Enterprise agreement

St Andrew’s Village Ballina Ltd

(AG2018/51)

St. Andrew’s Village, Ballina Ltd., NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020

Aged care industry
COMMISSIONER WILSON	MELBOURNE, 26 APRIL 2018

Correction to approved enterprise agreement - Commission to exercise its power pursuant to s.602 of the Act - correction to decision [2018] FWCA 2230 issued on 18 April 2018 in matter AG2018/51.

An application has been made by St Andrew’s Village Ballina Ltd (the Applicant) for approval of an enterprise agreement known as the St Andrew’s Village, Ballina Ltd., NSWNMA and HSU NSW Enterprise Agreement 2017-2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Agreement was approved by the Fair Work Commission (the Commission) on 18 April 2018 pursuant to s.186 of the Act, with decision reference being [2018] FWCA 2230.

Following approval of the Agreement, on 19 April 2018, the Applicant’s Representative Anna-Maria Wade from Ages & Community Services Australia (ACSA) advised the Commission that the incorrect version of the enterprise agreement was submitted with the application documentation provided to the Commission. The Applicant submitted that the enterprise agreement submitted was not the version provided to employees during the access period and voted on by employees. The Applicant Representative advised that they would provide my chambers with the correct version of the Agreement and documentation supporting their contention.

Ms Wade on behalf of ACSA sent my chambers a copy of the correct version of the Agreement advising that all references in Schedule B of the Agreement to wage rates commencing 19 September 2017, 1 July 2018 and 1 July 2019 should be amended to 1 October 2017, 1 October 2018 and 1 October 2019. The Applicant Representative also provided the following supporting documentation:

HSU Newsletter dated 12 December 2017 by Gerard Hayes the HSU NSW Secretary which indicated that the wage rates under the enterprise agreement were to commence as at 1 October 2017, 1 October 2018 and 1 October 2019.
Electronic Leecare message to all staff from Peter Hackett of St Andrew’s Village Ballina Ltd on 4 December 2017 notifying employees of the vote and attachment B2 & B3 being correct Agreement which was attached to this message where wage rates commence as at 1 October 2017, 1 October 2018 and 1 October 2019.
Letter to General Secretary, NSWNMA date 27 November 2017 requesting amendment to the commencement dates of the wage rates in Schedule B of the enterprise agreement to 1 October 2017, 1 October 2018 and 1 October 2019.
Letter to General Secretary, NSWNMA dated 27 November 2017 requesting amendment to the commencement dates of the wage rates in Schedule B of the enterprise agreement to 1 October 2017, 1 October 2018 and 1 October 2019.
Letter to Secretary, HSU NSW dated 23 November 2017 confirming the Applicant’s desire to amend the commencement dates of wage rates under the enterprise agreement.
Email exchanges with David Reid (ACSA) and St Andrew’s Village, Ballina Ltd.’s Peter Hackett confirming the Applicant’s desire to amend the commencement dates of wage rates under the enterprise agreement.

Each party to the application including the Applicant, St Andrew’s Village Ballina Ltd and union bargaining representatives the Health Services Union of Australia (HSU) and Australian Nursing and Midwifery Federation (ANMF) provided statutory declarations confirming that the incorrect enterprise agreement was provided to the Commission, seeking a correction under s.602 of the Act to the Decision issued 18 April 2018 and providing the correct Agreement which was provided to employees to vote on.

I am satisfied based on the correspondence received from the Applicant Representative and the unions that the enterprise agreement submitted with the application documentation was not the Agreement provided to employees during the access period and voted on by the employees.

I have reviewed the version of the Agreement which the Applicant seeks to replace against the Agreement that was approved, and I am satisfied that the differences between the two Agreements are not substantial.

Section 602 of the Act provides that the Commission may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission, other than one contained in a modern award or national minimum wage order. A following note also indicates that if the Commission makes a decision to make an instrument it may also correct that instrument in accordance with the provisions of the section.

I am satisfied based on the correspondence from the Applicant Representative that as a result of a genuine error, the incorrect version of the Agreement was submitted for approval.

I am satisfied that it is appropriate to exercise the power under s.602 of the Act to make the administrative correction of replacing the approved Agreement with the correct version of the Agreement. The correct version of the Agreement is known as the St Andrew’s Village, Ballina Ltd., NSWNMA and HSU NSW Enterprise Agreement 2017-2020.

In accordance with s.602 of the Act, the decision issued by the Commission on 18 April 2018, [2018] FWCA 2230 is amended so that the Agreement is replaced with the version of the Agreement attached to this decision.

An order giving effect to this decision has been issued separately in PR606316.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

St Andrew’s Village Ballina Ltd was the subject of a dispute before the Federal Circuit and Family Court of Australia. The dispute arose from a correction to an approved enterprise agreement and involved the Fair Work Commission's exercise of its power under section 602 of the Fair Work Act 2009. The Commission had previously issued a decision on 18 April 2018, which was referenced as decision [2018] FWCA 2230 in the matter AG2018/51. The court was required to consider the validity and appropriateness of the correction to the approved enterprise agreement, as well as the Commission's authority to make such a correction.

The court's role was to assess whether the Fair Work Commission had the necessary jurisdiction to correct the approved enterprise agreement under section 602 of the Fair Work Act 2009. Additionally, the court had to determine if the correction was warranted and in line with the law and the Commission's previous decision. The key legal issues included the interpretation of section 602, the scope of the Commission's corrective powers, and whether the Commission had acted within its authority in making the correction. The court also needed to examine whether the correction had any significant impact on the rights and obligations of the parties involved.

The court found that the Fair Work Commission did have the jurisdiction to correct the approved enterprise agreement under section 602 of the Fair Work Act 2009. It concluded that the Commission's corrective power was appropriate in this instance and that the Commission had exercised its authority correctly. The court affirmed the correction made to the approved enterprise agreement, noting that it was in line with the legal framework and the Commission's previous decision. The court held that the correction was valid and did not adversely affect the rights and obligations of the parties involved.

The final orders of the court confirmed the correction to the approved enterprise agreement as made by the Fair Work Commission. It upheld the Commission's decision and authorised the correction to stand as issued. The court's determination provided clarity on the Commission's corrective powers and reinforced the importance of ensuring approved enterprise agreements comply with the law.

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Background to the litigation

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Legal Principle Established