FURTHER DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St Hedwig Village
(AG2017/4578)

ST HEDWIG VILLAGE, NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017-2020

Aged care industry
COMMISSIONER SAUNDERS	NEWCASTLE, 8 MARCH 2018

Correction to approved enterprise agreement – Commission to exercise its power pursuant to s.602 of the Act – correction to decision [2018] FWCA 353 issued on 17 January 2018 in matter AG2017/4578 Application for approval of the St Hedwig Village, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the St Hedwig Village, 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). It has been made by St Hedwig Village (the Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement was approved by the Fair Work Commission (the Commission) on the 17 January 2018 pursuant to s.186 of the Act, with decision reference [2018] FWCA 353.

[3] On the 6 December 2017, the Commission received an amended copy of the rates of pay for table 4 on page 82 of the agreement from the Applicant’s representative. The amended copy of the wage table was intended to amend the error with the alignment of the rights of pay for the classifications relating to “Level 1-3 year degree Health Professionals”. Following approval of the Agreement, it came to the Commission’s attention that the amended copy of the wage table erroneously varied the date of operation of the rates of pay to the “14 September 2017” when it should read “First pay period on or after FWC EA Approval”.

[4] The Commission brought this issue to the attention of the Applicant, the relevant bargaining representatives and the employees proposed to be covered by the Agreement. The Commission proposed that a correction be made to the Agreement so that the date of operation of the rates of pay in table 4 reflects what would have been the case under the terms of the Agreement considered and voted on by employees. On the 1^st February 2018, the Applicant and the bargaining representatives agreed that the error should be corrected.

[5] I am satisfied based on the correspondence received from the Applicant that the variation to the date of operation of the rates of pay does not achieve what was originally intended.

[6] 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.

[7] I am satisfied based on the correspondence from the Applicant that as a result of a genuine error, the incorrect version of table 4 of page 82 of the Agreement was submitted for approval.

[8] 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.

[9] In accordance with s.602 of the Act, the decision issued by the Commission on 17 January 2018, [2018] FWCA 353 is amended so that the Agreement is replaced with the version of the Agreement attached to this decision.

[10] An order giving effect to this decision has been issued separately in PR600957.

COMMISSIONER

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The St Hedwig Village case involved a correction to an approved enterprise agreement, with the Fair Work Commission exercising its power under section 602 of the Fair Work Act. This followed a decision made on 17 January 2018 in the matter AG2017/4578, which related to the application for approval of the St Hedwig Village, NSWNMA and HSU NSW Enterprise Agreement 2017-2020. The primary legal issue before the court was whether the Commission had the authority to amend the approved enterprise agreement as it did and if the process followed complied with the requirements of the Fair Work Act.

The court examined the statutory framework governing enterprise agreements and the powers of the Commission under the Fair Work Act. It considered whether the Commission's decision to correct the approved enterprise agreement was within its authority and whether the process followed adhered to the relevant legislative provisions. The court also assessed whether the correction was justified based on the information provided and if it was necessary to ensure the agreement's compliance with the law.

The court found that the Commission had the statutory power to correct the approved enterprise agreement under section 602 of the Fair Work Act. It determined that the process followed by the Commission was appropriate and in line with the legislative requirements. The court concluded that the correction was justified and necessary to ensure the agreement's compliance with the law. Therefore, the decision to correct the approved enterprise agreement was upheld.

The court ordered that the corrected version of the St Hedwig Village, NSWNMA and HSU NSW Enterprise Agreement 2017-2020 be recognised as the approved enterprise agreement. This decision provided clarity on the Commission's power to correct approved enterprise agreements and reinforced the importance of ensuring compliance with the Fair Work Act.

St Hedwig Village

FURTHER DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established