The Australian Red Cross Society

Case •

[2024] FWCA 3470

•

2 OCTOBER 2024
[2024] FWCA 3470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

The Australian Red Cross Society

(AG2024/3061)

AUSTRALIAN RED CROSS LIFEBLOOD NORTHERN GENERAL ENTERPRISE AGREEMENT 2023

Health and welfare services

COMMISSIONER CONNOLLY

MELBOURNE, 2 OCTOBER 2024

Application for approval of the Australian Red Cross Lifeblood Northern General Enterprise Agreement 2023

Approval

  1. An application has been made for approval of an enterprise agreement known as the Australian Red Cross Lifeblood Northern General Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by The Australian Red Cross Society (the Applicant). The Agreement is a single enterprise agreement.

  1. The matter was allocated to my Chambers on 26 August 2024.

  1. The notification time for the Agreement under s.173(2) was 12 July 2023 and the Agreement was made on 31 July 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

  1. On 5 September 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

  1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the insertion of the previous name of the Agreement had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

  1. There are two National Employment Standards (NES) issues that require comment:

  • Issue 1: Clause 17.9 of the agreement states if an Employee requires Sick (including wellbeing) or Carer’s Leave, the Employee must notify their manager before the commencement of the shift and advise that they cannot attend work; and how long they will not attend work. Further, it is noted that clause 17.10 states that it is understood that in some circumstances of unplanned leave, notice cannot be provided before the commencement of a shift, and this will be taken into consideration. Similarly, clause 18.3 also contains alike provisions in relation to compassionate leave. This may raise inconsistency with s.107 (2)(a) of the Act which provides that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).
  • Issue 2: Public holiday - Clause 20.17 of the agreement indicates that an employee may be required to work a public holiday, however, does not specify that an employee may refuse to work a public holiday where the request by the employer is unreasonable, or the refusal is reasonable. Additionally, it is noted that clause 20.17 states that Lifeblood will consider the factors outlined in section 114 (4) of the Act. However, this may raise an inconsistency with s. 114 (3) of the Act.

  1. Clause 5.1 of the Agreement acts as an effective NES precedence clause, in that it states that ‘Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit or entitlement, the NES provision will apply to the extent of the inconsistency.’ As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

  1. The “Australian Municipal, Administrative, Clerical and Services Union”, “United Workers’ Union” and “The Association of Professional Engineers, Scientists and Managers, Australia” being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

  1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

  1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 September 2026.

Variation

  1. A Form F1 (AG2024/3065) matter was simultaneously lodged with the Agreement, which sought to vary provisions of the Agreement pursuant to section 217 and 218A of the Act. The F1 highlighted errors within the Agreement that had been identified through extracts which reflected the errors and the necessary amendments. The updated copy of the Agreement with the errors corrected was attached to the F1 application.

  1. Additionally, on the Commission’s review of the Agreement, it was identified that there was another error that required correction, specifically in clause 46.10, which contained a reference to clause that did not exist within the Agreement.

  1. On 5 September 2024, chambers wrote to the parties to seek their views on the amendments sought. No response was received in relation to this.

Section 217

  1. Section 217 of the Act provides that the Commission ‘may vary an enterprise agreement to remove an ambiguity or uncertainty’ on application. The employer (as defined) is a person entitled to make such an application. The principles applicable to an application under s.217 were considered by the Full Court of the Federal Court in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union[2] (Bianco).

  1. It is not necessary to set out those principles in detail. It is sufficient to note that the existence of a relevant ambiguity or uncertainty is a jurisdictional fact required as a precondition to the exercise of the power.[3] The terms “ambiguity” and “uncertainty” are not synonymous, although there is some relationship between their meaning.[4]

“… There may, for example, be uncertainty in an

enterprise agreement even when its terms are not ambiguous.  The uncertainty may arise from the application of the unambiguous terms to a given set of circumstances.  The distinction between patent ambiguity (linguistic ambiguity) and latent ambiguity (ambiguity in application) provides an illustration by analogy…”[5]

  1. It is not necessary to interpret or construe an enterprise agreement for the purpose of s.217. “A provision may be ambiguous even though it is capable of interpretation”.[6] The ambiguity may be apparent on the face of the document or may become apparent only when extrinsic evidence is adduced.[7] Any established ‘common intention’ of parties concerning the impugned provision can be considered.[8]

  1. As s.217 makes clear, if the jurisdictional requirements are met, the Commission “may” (not must) vary the agreement. Whether to exercise its discretion to vary the agreement will necessarily depend upon the circumstances of the matter.

  1. In the F1, the Applicant seeks to vary clauses 17.1(i), 15 and Appendix 4 – Classification Structure. The Applicant submits that these clauses, which address personal leave, ten hour break and the scientists classification structure, respectively, are required to be amended to remove ambiguity and to clarify clauses to reflect the intent of the parties.

  1. In the circumstances, I am satisfied that the proposed variations address ambiguity and uncertainty within the Agreement. No employee bargaining representatives have indicated opposition and there are not matters of which I am aware which would weigh against the exercise of my discretion to vary the Agreement in the manner proposed. The Agreement will be amended as per the Order at the end of this Decision.

Section 218A

  1. Section 218A, which came into effect on 7 December 2022, is as follows:

“218A 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; or

(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. As has been noted in recent decisions of the Commission,[9] s.218A of the Act is not unlike the slip rule found in s.602 of the Act which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. Its evident purpose is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

  1. Before an amendment under s.218A can be made, the Commission must first be satisfied of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

  1. I am satisfied that the existence of an error in Clause 46.10 of the Agreement which contains a reference to an incorrect clause is an obvious error. While section 218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied that the amendment 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 error is readily identified, as is the correction needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The error in the above clause will be amended to reflect the correct clause references provided by the Employer, as ordered below.

Order

  1. I order, pursuant to ss 217 and 218A of the Act, that the Agreement be varied as follows:

  1. By deleting the reference to “44.1i” in Clause 46.10 and replacing it with “46.1(ii)”
  1. By deleting clause 17.1 and replacing it with the following:

“17.1 Personal leave can be taken: 

i.where an Employee is not fit for work due to a personal illness or injury affecting the Employee (Sick Leave);

ii.as Carer’s Leave;

iii.as Urgent Pressing Necessity Leave;

iv.for preventative medical purposes; 

v.to support the Employee’s wellness and wellbeing;

vi.to support Employees experiencing the symptoms of menopause (including perimenopause);

vii.to support Employees in relation to their reproductive healthcare needs (this includes but is not limited to fertility treatments, endometriosis and preventative screening); and/or

viii.during an emergency affecting an Employee’s pet.”

  1. By deleting the second reference to “15.16” under ‘Ten Hour Break’ in clause 15 and replacing it with “15.17”.
  1. By deleting the reference to “15.17” under ‘Ten Hour Break’ in clause 15 and replacing it with “15.18”.
  1. By inserting the role of “Senior Scientist” with the “R&D” Function to Level 3(b) of the ‘Scientific Roles’ in Appendix 4 – CLASSIFICATION STRUCTURE.

  1. These variations above will operate on 2 October 2024.

  1. The Applicant has simultaneously submitted a copy of the Agreement with the variations listed above. The Agreement, as varied, will be published with this Decision.

COMMISSIONER


[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

[2] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50

[3] Bianco, [49].

[4] Bianco, [67].

[5] Bianco, [75].

[6] Bianco, [67].

[7] Bianco, [67].

[8] Bianco, [68].

[9] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury

t Printed by authority of the Commonwealth Government Printer

<AE526273  PR779882>

hen was).

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0