State of Victoria (Department of Health) T/A Department of Health
[2022] FWCA 975
•21 MARCH 2022
| [2022] FWCA 975 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s. 185—Enterprise agreement
State of Victoria (Department of Health) T/A Department of Health
(AG2022/668)
MCH Nurses (Department of Health) Agreement 2021.
| Health and welfare services | |
| COMMISSIONER MIRABELLA | MELBOURNE, 21 MARCH 2022 |
Application for approval of the MCH Nurses (Department of Health) Agreement 2021 – s. 217 application made to vary the Agreement to remove ambiguity or uncertainty – applications granted.
The State of Victoria (Department of Health) T/A Department of Health (the Employer) has made an application for approval of an enterprise agreement known as the MCH Nurses (Department of Health) Agreement 2021 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Alongside the application made pursuant to s. 185, the Employer also filed an application pursuant to s. 217 of the Act to vary the Agreement to remove an ambiguity or uncertainty. It is to that application I turn first.
Section 217 Application
The uncertainty or ambiguity is said to arise in relation to the following clause in the Agreement.
“44.2 On production of proof of attendance at an approved rehabilitation program, in accordance with subclause 44.1, an employee may be granted leave as follows:
(a) An employee who has completed 2 years’ continuous or aggregate service and who has exhausted all other accrued leave entitlements may be granted leave with pay up to the maximum number of days specified below:
| Years of Service | First Year of Program | Subsequent Years of Program |
| years | 20 days | 15 days |
| years | 27 days | 20 days |
| years | 33 days | 25 days |
| or more years | 40 days | 30 days |
In its application made under s. 217, the Employer states that:
“The Agreement contains a minor error which leads to uncertainty and ambiguity. The Agreement omits the figures from the table contained in clause 44.2(a) such that employees are unable to determine the number of years’ service required for employees to access alcohol and drug or problem gambling rehabilitation leave.
In keeping with Deputy President Gostencnik’s approach in approving the Victorian Public Service Enterprise Agreement 2020 (AG2020/2580), we respectfully request that this error be amended immediately upon approval, such that on commencement, the approved Agreement is free from the error that has been identified.”
A question that the s. 217 application raises is whether the Agreement can be varied in the manner sought by the Employer as part of my consideration of approval of the Agreement. The answer to that question is yes in my view for the reasons that follow.
Section 217 provides for the variation of enterprise agreements to remove ambiguity or uncertainty as follows:
“(1) FWA may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”
There are a number of conditions precedent necessary for the exercise of discretion under s. 217. An application must have been made by one of the parties set out in subsections 217(1)(a)-(c). The application has been made by the State of Victoria (Department of Health) T/A Department of Health which is the employer that is covered by the Agreement thus satisfying that requirement. There must also be an enterprise agreement that is the subject of the application. In the present case the Agreement has not yet been approved; however, that is not a barrier to the use of s. 217 for the following reasons:
An enterprise agreement is defined at s. 12 of the Act to mean:
“(a) A single-enterprise agreement; or
(b) a multi-enterprise agreement.”
A single-enterprise agreement is defined in s. 12 of the Act to mean “an enterprise agreement made as referred to in sub-section 172(2)”. Section 172(2)(a) of the Act relevantly states that:
“An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement”
An enterprise agreement is made pursuant to s. 182(1) of the Act in the following circumstances:
“(1)If the employees of the employer or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”
It is apparent on the material filed with the application for approval of the Agreement that employees were requested by the Employer to approve the Agreement by voting on it (s. 181(1)) in a ballot conducted on 21 February to 4 March 2022. A valid majority of employees who participated in the ballot approved the Agreement which was made on 4 March 2022 (s. 182(1)). As the Agreement was made on 4 March 2022, it follows that it is an enterprise agreement made pursuant to s. 172(2) and as defined under s. 12 of the Act. As it is an enterprise agreement as defined under the Act, I am satisfied that it may be varied pursuant to an application made under s. 217 of the Act.
Returning now to the merits of the application, I find that clause 44.2(a) of the Agreement is ambiguous or uncertain.
I note that, as bargaining representative for the Agreement, I sought the views of the Australian Nursing and Midwifery Federation (ANMF) in relation to the application made under s. 217. The ANMF indicated via email that they have no concerns in relation to the application.
Clause 44.2(a) of the Agreement is consequently varied as follows:
“44.2 On production of proof of attendance at an approved rehabilitation program, in accordance with subclause 44.1, an employee may be granted leave as follows:
(a) An employee who has completed 2 years’ continuous or aggregate service and who has exhausted all other accrued leave entitlements may be granted leave with pay up to the maximum number of days specified below:
| Years of Service | First Year of Program | Subsequent Years of Program |
| 2 years | 20 days | 15 days |
| 3 years | 27 days | 20 days |
| 4 years | 33 days | 25 days |
| 5 or more years | 40 days | 30 days |
An order giving effect to this variation will take effect from the date of operation of the Agreement, that being 28 March 2022.
Application for approval of the Agreement
On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.
The Form F17 Declaration lodged contained an error in that it provided an incorrect date for the notification time of the Agreement. The Employer has requested that the Commission exercise its discretion to correct this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s. 586 of the Act. On 18 March 2022 the Employer filed an amended version of the Form F17 Declaration correcting the error identified.
The ANMF, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.
The Agreement was approved on 21 March 2022 and, in accordance with s. 54, will operate from 28 March 2022. The nominal expiry date of the Agreement is 15 November 2025.
COMMISSIONER
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