Technical and Further Education Commission T/A TAFE NSW

[2023] FWCA 155

[2023] FWCA 155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Technical and Further Education Commission T/A TAFE NSW

(AG2022/5462)

TAFE COMMISSION OF NSW ADMINISTRATIVE, SUPPORT AND RELATED EMPLOYEES ENTERPRISE AGREEMENT 2022

Educational services
COMMISSIONER JOHNS	MELBOURNE, 23 JANUARY 2023

Application for variation of the TAFE Commission of NSW Administrative, Support and Related Employees Enterprise Agreement 2022

1. Technical and Further Education Commission T/A TAFE NSW (Applicant) has made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the TAFE Commission of NSW Administrative, Support and Related Employees Enterprise Agreement 2022 (Agreement) to correct or amend an error, defect or irregularity in the Agreement (Application).

1. The Agreement was approved by the Commission on 8 December 2022 and commenced operation on 15 December 2022[1]. The Applicant is the employer covered by the Agreement.[2] The Community and Public Sector Union (CPSU), United Workers’ Union (UWU) and the Australian Workers’ Union (AWU) are covered by the Agreement. The Applicant submits that the Agreement contains a substantive error, defect or irregularity, the details of which are set out and considered below.

1. I listed the matter for a mention/directions hearing on 11 January 2023. At the hearing the CPSU confirmed that it consents to the proposed variation to the Agreement.

1. No objection to the Application was received from either the UWU or the AWU.

Statutory Provisions

1. 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) Bill 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows;

“(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.”

1. The Explanatory Memorandum (EM) that supports the above-referred Bill relevantly states 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.”

Consideration

1. The Applicant seeks to vary schedule A, clause 4.1 of the Agreement so that it reads as follows:

Level	Step	From FFPP on or after 18 September 2022 ($)
Child Care Assistant (CCW)	1 2 3 4 5	916.98 924.64 931.75 939.30 948.28

1. The Applicant submits that when preparing the Agreement for approval, there was an error in transposing the pay rates at schedule A, clause 4.1.

1. Clause 24.1 of the Agreement provides:

The salaries and rates of pay listed in Schedule A incorporate an increase of

(a) 2.53% with effect from the first full pay period commencing on or after 18 September 2022.

1. The Applicant submits that the current schedule A, clause 4.1 does not reflect the increase specified in clause 24.1. Further, the explanatory material provided to employees prior to the ballot for the approval of the Agreement stated that the Agreement “provides for a 2.53% salary increase”. The Applicant submits that therefore the Agreement contains a drafting error of the kind contemplated by s.218A of the Act, as the rates of pay have been transposed incorrectly.

1. As Deputy President Masson recently observed in Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026 [2022] FWCA 4390,

“[9] It is apparent from the text of s. 218A and the supporting EM 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[3] (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, 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.

1. In the present case the contended error is that of incorrectly transposing the rates of pay listed at schedule A, clause 4.1 during the Agreement drafting process.

1. The contended error which was not identified until after the Agreement was approved is arguably an error of substance and omission. A demonstrated error of omission would in my view fall within the scope of s. 218A(1).

1. Turning to whether the error in transposing the pay rates at schedule A, clause 4.1. constitutes an error, defect or irregularity, it is relevant to my consideration that,

a)   the current schedule A, clause 4.1 does not reflect the increase specified in clause 24.1; and

b)   the explanatory material provided to employees prior to the ballot for the approval of the Agreement stated that the Agreement “provides for a 2.53% salary increase”.

1. Having regard to the above, I am satisfied that the inadvertent error in transposing the pay rates at schedule A, clause 4.1. was an error that arose during drafting of the Agreement prior to the ballot for approval of the Agreement. I am also satisfied that the transposing error is an error of substance and significantly disadvantages employees. While such disadvantage is not in my view a pre-requisite for the exercise of the Commission’s discretion to vary the Agreement, it is a matter I have taken into account in the present matter.  This is consistent with the approach adopted by the Deputy President in the Doctors in Training matter.

Conclusion

1. For the reasons set out above, I am satisfied that the error contained in schedule A, clause 1.4 is an error within the meaning of s. 218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the employer covered by the Agreement, thus satisfying the requirements of s. 218A(2)(b)(i) of the Act. The variation sought will operate from 23 January 2023. An order giving effect to this decision will be separately issued.

COMMISSIONER

[1] [2022] FWCA 4326.

[2] Agreement, clause 3.1.1.

[3] [2021] FWCFB 453

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