TasTAFE
[2024] FWCA 1546
•26 APRIL 2024
| [2024] FWCA 1546 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
TasTAFE
(AG2024/869)
TASTAFE TEACHING EMPLOYEES ENTERPRISE AGREEMENT 2023
| Educational services | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 26 APRIL 2024 |
Application for approval of the TasTAFE Teaching Employees Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the TasTAFE Teaching Employees Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by TasTAFE (Employer). The Agreement is a single enterprise agreement.
The Agreement does not contain a model flexibility term that is compliant with the Act. Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES:
Personal/carer’s leave - Clause 53(h) of the Agreement provides that an employee must notify their employer of absence within 2 hours of commencement of normal duty, which may be inconsistent with s 107 of the Act, which provides that notification may be a time after the leave has started.
Family and domestic violence leave - Clause 55(j) of the Agreement indicates that sessional employees are entitled to ‘leave work or to not be available to attend work’ for a period of up to 20 days per occasion. Given that sessional employees under the Agreement are identified as casual employees, such employees may be entitled to paid family and domestic violence leave for casuals pursuant to s 106A of the Act.
The Australian Education Union (AEU) being a bargaining representative for the Agreement supports the approval of the Agreement and has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s 54 of the Act will operate from 3 May 2024. The nominal expiry date of the Agreement is 3 May 2027.
Variation
Concurrently with the approval application, the Employer also filed an application seeking a variation of the Agreement under s 218A of the Act. The s 218A application is said to have been made on the basis that clause 40(b)(iii) of the Agreement contains an error in the calculation formula for ‘non-attendance time,’ and a cross referencing error appears in clause 68(a).
The employee bargaining representatives were provided with an opportunity to address the s 218A application. No submissions were made.
Section 218A of the Act was inserted by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 to provide a process for varying an enterprise agreement to “correct or amend an obvious error, defect or irregularity,” whether in substance or form. It provides as follows:
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.
Before an enterprise agreement may be varied under s 218A of the Act, there must be satisfaction of the existence of an obvious error, defect or irregularity (whether in substance or form).
I am satisfied that the error in the calculation formula in clause 40(b)(iii) of the Agreement is an obvious error. The formula contained in clause 40(b)(iii) is used to calculate the amount of non-attendance time to which an Educational Team Leader is entitled per year. The multiplier is intended to be 35, which is a reference to the maximum number of non-attendance days per year under clause 40(b)(i) of the Agreement. I accept that this error occurred when all references to "35” in the Agreement were replaced with “36.1” using the “find and replace” function, when the ordinary hours per week were changed from 35 to 36.1 hours per week under the Agreement.
I am also satisfied that the cross-referencing error in clause 68(a) of the Agreement, which states “Error! Reference source not found” is an obvious error.
The exercise of the Commission’s discretion is directed to “correct or amend” the obvious error identified. I consider the errors identified are of a kind that may be corrected by varying the Agreement to amend the reference from “36.1” to “35” in the formula used in clause 40(b)(iii) and by removing the cross-referencing error in clause 68(a) and inserting “clause 32(b)” in its place, which deals with termination of employment within the probationary period.
I consider that the corrections proposed by this application are necessary and appropriate to ensure that the Agreement accurately reflects what was clearly intended, and will provide certainty when referring to provisions of the Agreement. There are no grounds telling against the exercise of my discretion to vary the Agreement to correct the errors.
Accordingly, the errors will be corrected in the manner sought and as specified in the order that follows. The order will operate from the date of this decision.
Order
Pursuant to s 218A of the Act, I order that the Agreement be varied to correct an obvious error as follows:
(1) By deleting from clause 40(b)(iii) the reference to “36.1” and replacing it with “35.”
(2) By deleting from clause 68(a) the words “Error! Reference source not found” and replacing it with “clause 32(b).”
The published Agreement will contain the corrections described in the above order.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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