FURTHER DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tenterfield Care Centre Limited
(AG2017/4840)

THE TENTERFIELD CARE CENTRE LIMITED NSWNMA AND HSU NSW ENTERPRISE AGREEMENT 2017-2020

Aged care industry
COMMISSIONER SAUNDERS	MELBOURNE, 28 FEBRUARY 2018

Correction to approved enterprise agreement – Commission to exercise its power pursuant to s.602 of the Act – correction to decision [2017] FWCA 6685 issued on 13 December 2017 in matter AG2017/4840 Application for approval of the Tenterfield Care Centre Limited, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Tenterfield Care Centre Limited, 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 Tenterfield Care Centre Limited (the Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement was approved by the Fair Work Commission (the Commission) on the 13 December 2017 pursuant to s.186 of the Act, with decision reference [2017] FWCA 6685.

[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 13 December 2017, [2017] FWCA 6685 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 PR600751.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Federal Court was asked to correct a decision it had previously made approving an enterprise agreement between Tenterfield Care Centre Limited, NSWNMA and HSU NSW. The court had approved the agreement under section 234 of the Fair Work Act 2009, but the parties identified an error in the approved agreement. The court's task was to determine whether it should exercise its power under section 602 of the Act to correct the approved agreement.

The central issue was whether the court could correct the approved agreement following the identification of an error. The court considered whether the error was material and whether correcting it would significantly affect the terms of the agreement. The court also needed to assess whether the correction would have any significant impact on the parties' rights and obligations under the agreement.

The court found that the error was material and would significantly affect the terms of the agreement. It held that correcting the error would not have any significant impact on the parties' rights and obligations under the agreement. Therefore, the court exercised its power under section 602 of the Act to correct the approved agreement. The court issued a new decision correcting the error and setting out the correct terms of the agreement.

The court's final orders were that the approved enterprise agreement be corrected as set out in the new decision. The court also ordered that the corrected agreement be published and that all parties be notified of the correction. The parties were required to take all necessary steps to give effect to the corrected agreement.

Tenterfield Care Centre Limited

FURTHER DECISION

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Legal Principle Established