State Of Victoria (Department of Education) T/A Department of Education
[2023] FWCA 3052
•20 SEPTEMBER 2023
| [2023] FWCA 3052 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
State Of Victoria (Department of Education) T/A Department of Education
(AG2023/2974)
VICTORIAN GOVERNMENT SCHOOLS AGREEMENT 2022
| Educational services | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 20 SEPTEMBER 2023 |
Application for variation of the Victorian Government Schools Agreement 2022
The State of Victoria (Department of Education) T/A Department of Education (the Applicant) has applied pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Victorian Government Schools Agreement 2022 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Commission on 18 July 2022 and commenced operation on 25 July 2022. The nominal expiry date of the Agreement is 31 December 2025. The Applicant is the sole employer covered by the Agreement.
The following employee organisations are covered by the Agreement:
·The Australian Education Union (AEU);
·The Australian Nursing and Midwifery Federation (ANMF);
·The Australian Principals Federation (APF); and
·The Community and Public Sector Union (CPSU).
The Applicant seeks to vary the Agreement as follows:
(a) In clause 24(5)(a)(vi), for “clause 20(8)” substitute “clause 20(9)”;
(b) In clause 24(5)(a)(vii), for “clause 20(8)” substitute “clause 20(9);
(c) In clause 26(1)(b), for “subclause 20(8)” substitute “subclause 20(9)”;
(d) In clause 26(18)(d)(ii), for “subclause 17(c)” substitute “subclause (17)(c)”;
(e)In the table in clause 1.3 of Schedule 1, at the top of column ten for “1/10/20” substitute “1/01/25”;
(f)In the table in clause 1.3 of Schedule 1, at the top of column 11 for “1/01/25” substitute “1/07/25”;
(g)In the table in clause 1.4 of Schedule 1, at the top of column 11 for “1/01/25” substitute “1/07/25”;
(h)In Schedule 4, under the heading “Education support class Level 1 Range 2, for “clause 2.6.1” substitute “section 2.4.1”; and
(i)In Schedule 4, under the heading “Education support class Level 1 Range 3, for “clause 2.6.1” substitute “section 2.4.1”.
The Applicant submits that the errors identified at paragraph 4 are obvious errors, defects or irregularities for the purposes of section 218A of the Act.
Consideration
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.”
Further, the Explanatory Memorandum in support of the Bill provides as follows:
“772. This part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:
· simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and
· provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.”
As Deputy President Masson observed in Application by Victorian Hospitals’ Industrial Association:[1]
“[9] It is apparent from the text of s. 218A and the supporting Explanatory Memorandum that s. 218A is intended to overcome the statutory limitation imposed by s.602 of the Act that was most recently identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union (Advantaged Care). In that decision the Full Bench confirmed that the Commission could not amend the text of an agreement to correct an obvious error, defect or irregularity pursuant to s. 602 of the Act and that other provisions within the Act, such as ss. 210 or 217, might be used to rectify such error, defect or irregularity.
[10] There are limitations to the use of ss. 210 and 217 of the Act in varying an agreement to address an obvious error, defect or irregularity. For example, it may be considered costly and impractical to conduct a ballot of employees for the purpose of obtaining approval for the variation of an agreement pursuant to s. 210 of the Act, where the variation sought is not substantive. Section 217 might also not be amenable to correcting an obvious error, defect or irregularity where the error does not create uncertainty or ambiguity. It is accepted that s. 218A confers an additional discretion for the Commission to amend an error, defect, or irregularity in an agreement, be that in form or substance.”
The Applicant submits that the variations sought at paragraph 4 fall into two categories: Payment date errors and cross-referencing errors.
Payment date errors
In relation to the variations sought at paragraphs 4(e)-(g), the Applicant submits that errors have been identified with reference to the content of clause 8(1) of the Agreement. It contends that clause 8(1) provides for the 1.0% salary increase to commence on the first pay period on or after the listed dates. Schedule 1 of the Agreement sets out the salary tables for each class of employees covered by the Agreement, including the dates the salary increase is to apply. The variations sought at paragraphs 4(e)-(g) seek to address the incorrect dates completed in Schedule 1 which were intended to reflect the salary increases specified in clause 8(1).
The Applicant further contends that the explanatory material distributed to employees prior to the ballot for approval of the Agreement, contained information consistent with clause 8(1) of the Agreement. This included a summary of the proposed eight 1% salary increases to occur over the nominal life to the Agreement, with the first increase payable on or after 1 January 2022 and six-monthly thereafter. The explanatory material also provides for the increase as set out in clause 8(1). I accept that the variations sought at paragraphs 4(e)-(g) are obvious errors of substance that occurred during the drafting process and were inadvertently and incorrectly transposed into the salary table at clauses 1.3 and 1.4 of Schedule 1. I am satisfied that the current salary table at Schedule 1 of the Agreement does not accurately reflect the arrangements at clause 8(1).
Cross-referencing errors
The Applicant submits that the variations sought at paragraphs 4(a)-(d) and 4(h)-(i) are typographical cross-referencing errors. I am satisfied the cross-referencing errors in the Agreement, are obvious errors that occurred during the drafting of the Agreement and which were not identified until after the Agreement was approved.
Employee Representative’s Views
As indicated above, the AEU, ANMF, APF and CPSU (collectively referred to as the Employee Representatives”) are covered by the Agreement. Although I am not required to take the Employee Representative’s views into account, on 30 August 2023, I directed the Applicant to serve copies of the application and supporting documents on the Employee Representatives. In the service letter, the Employee Representatives were directed to provide any views in relation to the variations sought in the application by no later than 8 September 2023, failing which the application may be determined on the material currently before me.
The ANMF, CPSU and AEU advised my chambers that they do not have any objections to the application. No response was received from the APF.
Conclusion
While s.218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied the amendments at paragraph 4 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, as are the corrections needed to make the Agreement accurately reflect what was clearly intended. The ANMF, CPSU and AEU do not object to the variations sought. There are no reasons not to exercise my discretion and good reasons to do so.
For the reasons set out above, I am satisfied that the errors contained in paragraph 4 are obvious errors within the meaning of s.218A of the Act. In accordance with s.218A(3), the variation will operate from 25 July 2022. An order to that effect will be issued separately.
DEPUTY PRESIDENT
<AE516696 PR766432>
[1] [2022] FWCA 4390 at [9]-[10].
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