The Catholic Church of the Diocese of Darwin Property Trust Inc T/A Catholic Education Northern Territory Diocese of Darwin

[2024] FWCA 3298

[2024] FWCA 3298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

The Catholic Church of the Diocese of Darwin Property Trust Inc T/A Catholic Education Northern Territory Diocese of Darwin

(AG2024/2537)

CATHOLIC SCHOOLS (NORTHERN TERRITORY) COLLECTIVE ENTERPRISE AGREEMENT 2022

Educational services
COMMISSIONER RIORDAN	SYDNEY, 2 OCTOBER 2024

Application for variation of the Catholic Schools (Northern Territory) Collective Enterprise Agreement 2022

1. The Catholic Church of the Diocese of Darwin Property Trust Inc T/A Catholic Education Northern Territory Diocese of Darwin (the Applicant) has applied pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Catholic Schools (Northern Territory) Collective Enterprise Agreement 2022 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by the Commission on 6 February 2023 and commenced operation from 13 February 2023. The Applicant is the sole employer covered by the Agreement. The Agreement also covers The Australian Nursing and Midwifery Federation (NT Branch) (ANMF), the Independent Education Union of Australia – Queensland and Northern Territory Branch (IEUA), the United Workers’ Union (NT Branch) (UWU), and the Shop, Distributive and Allied Employees Association (SDA).

1. The Applicant made this application under s.218A, or, in the alternative, s.217 of the Act. The application concerns undertaking 7 of the Undertaking provided by the Employer at the time when the Agreement was approved by the Commission.[1]

Section 218A Application

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) Act 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity. Section 218A provides:

“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;
(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 in support of the Bill provides 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.”

1. As Deputy President Masson observed in Application by Victorian Hospitals’ Industrial Association:[2]

“[9] It is apparent from the text of s.218A and the supporting Explanatory Memorandum 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 (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, such as 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 17 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 hat 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.”

Consideration

1. The Applicant has applied to vary the Agreement by removing Undertakings 7.1 – 7.3, and replacing it with the following:

1. The Applicant submitted that the casual rate of pay for Inclusion Support Assistants (ISAs) in Undertaking 7.1 as currently contained in the Agreement is an obvious error, evident from the fact that:

“(a) the hourly rates used are clearly the rates taken from page 122 of the EA which have the 28% casual loading already factored in; and

(b) Undertaking 7.1 purports to be exclusive of casual loading (the prefatory statement states “plus casual loading where applicable”).”

1. The Applicant submitted that the proposed variation is intended to remove the error. The Applicant submitted that the clearly intended purpose of Undertakings 7.1 – 7.3 was to explain the rates of pay for part-time ISAs. The Applicant submitted that the proposed revised undertaking achieves that, without in any way altering the meaning or intention of the provision.

1. The Applicant submitted that the variation should be backdated to the date that the 2022 Agreement came into operation, being 13 February 2023, to provide absolute clarity about the payment obligations of the Applicant and the rights of employees during the period that the obvious error or defect has existed.

1. The IEUA were named as the Respondent to this s.218A application. Mr Lucio Matarazzo of Lucio Matarazzo Pty Ltd (LMPL) also sought to intervene and be heard on behalf of a client. That client has subsequently withdrawn from the application. LMPL has sought to have their submission taken into account by the Commission on the basis of a public interest perspective. LMPL are not a party to the Agreement, nor do they represent any employee that is covered by the Agreement.

1. The IEUA provided submissions stating that it agrees with the Applicant that it is clear the inclusion of table 7.1 in the Undertaking was done in error. The IEUA therefore did not oppose the application as made under s.218A of the Act and stated that the Commission should determine the application on the papers on the information before it.

1. For completeness, while not named as respondents to the application, my Chambers also wrote to the ANMF, the UWU, and the SDA on 18 September 2024, granting them 7 days to provide a response as to whether they supported or opposed the application as made by the Applicant under s.218A of the Act.

1. The ANMF, the UWU and the SDA have provided responses advising that they have no objection to the application.

Conclusion

1. I am satisfied and find that LMPL do not have the necessary standing to make submissions in relation to the proposed variation of the Agreement. I can find no public interest argument which would warrant the Commission to allow them to be heard in this matter, when there is a clear and identifiable error which occurred at the time that the Agreement was made. Therefore, LMPL’s submissions have not been taken into account.

1. On the materials before the Commission, I am satisfied that the error at Undertaking 7 to the Agreement is an obvious error. 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. Undertaking 7 will be amended as per the order below.

Order

1. I Order, pursuant to s.218A of the Act, that the Undertaking, as attached at Attachment A to this Decision, will replace the existing Undertaking and will operate from 13 February 2023, which is the date when the Agreement came into operation.

1. The  consolidated  version  of  the  Enterprise  Agreement  as  varied is attached.

COMMISSIONER

Attachment A

[1] [2023] FWCA 339.

[2] [2022] FWCA 4390 at [9]-[10].

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