The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane

[2020] FWCA 6349

[2020] FWCA 6349

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane
(AG2020/2030)

CATHOLIC EMPLOYING AUTHORITIES SINGLE ENTERPRISE COLLECTIVE AGREEMENT - DIOCESAN SCHOOLS OF QUEENSLAND 2019-2023

Education services
DEPUTY PRESIDENT LAKE	BRISBANE, 25 NOVEMBER 2020

Application for approval of the Catholic Employing Authorities Single Enterprise Collective Agreement - Diocesan Schools of Queensland 2019-2023 – agreement approved – application for variation or amendment under s.217 or s.586.

Background

[1] An application has been made for approval of an enterprise agreement known as the Catholic Employing Authorities Single Enterprise Collective Agreement - Diocesan Schools of Queensland 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane; The Roman Catholic Trust Corporation for the Diocese of Cairns; The Roman Catholic Trust Corporation for the Diocese of Rockhampton; The Roman Catholic Trust Corporation for the Diocese of Townsville; and the Corporation of the Roman Catholic Diocese of Toowoomba (the Applicant). The Agreement is a single enterprise agreement.

[2] The Australian Nursing and Midwifery Federation (ANMF), The United Workers Union (UWU) and the Independent Education Union (IEU) are bargaining representatives of the Agreement. The ANMF filed an F18 supporting approval. The IEU filed an F18 supporting approval, but subject to several concerns raised in response to the F17. The ANMF filed an F18 indicating that they opposed approval of the Agreement, levying concerns with the Agreement.

[3] All parties to the Agreement agreed that this matter should be heard alongside the application for approval of the “Catholic Employing Authorities Single Enterprise Collective Agreement - Religious Institutes Schools Queensland 2019 – 2023.” Given the degree of similarity, I agreed to hear the matters together. A separate Decision approving that agreement has also been published. 1

[4] Alongside the applications for approval, a Form 1 was filed in respect of each agreement regarding a variation or correction under s.217 or s.586 of the Act.

Outstanding Issues

[5] Chambers raised concerns and invited further submissions from the parties. Submissions were provided by the parties and a hearing was scheduled to hear the parties on the outstanding issues. Prior to the hearing, Chambers issued directions instructing the parties to convene and prepare an agenda of outstanding issues, as draft undertakings had been provided that alleviated many of the initial objections. An agenda was provided which outlined two final issues that required attention.

[6] At this point, the UWU confirmed “that the employer response adequately addresses any issues within the UWU areas of coverage and [they did] not seek to be further heard in the matters”.

[7] Prior to the hearing, I sought confirmation that unions did not press any submissions other than those raised in the most recent agenda. The IEU provided:

“The IEUA-QNT confirms that (form our point of view) the only matters for determination tomorrow are the two matters identified in the attachment to Mr Kelly’s email on 26 October 2020. The IEUA does not press any other submissions”.

[8] The ANMF provided:

“We have had an opportunity to review the Agenda items provided by the Applicant which reflect the resolution of the issues as they relate to school nurses as identified by the Commission. On that basis the issues which the QNMU had with the Agreement are now resolved”. 

[9] The UWU provided:

“UWU has had the opportunity to review the matters of concern identified by FWC and the Agenda items provided yesterday. UWU confirms that the employer response adequately addresses any issues within the UWU areas of coverage and we do not seek to be further heard in the matters”.

[10] On this basis I was satisfied the only matters that required addressing at the hearing were those in the agenda. The matters were jointly heard at Brisbane, on Friday 30 October 2020.

[11] At the hearing, the Applicant was represented by Mr Ray Kelly, of the Queensland Catholic Education Commission, and Mr Colin O’Neill, on behalf of the Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane, trading as Brisbane Catholic Education.

[12] Mr John Spriggs, Senior Industrial Officer, and Ms Monique Roosen, Industrial Services Officer, appeared for the IEU.

[13] Mr Christopher Murray, Industrial Officer, appeared on behalf of the ANMF.

[14] Mr Murray, for the ANMF stated that they no longer had any outstanding issues and supported the position of the IEU with respect to the outstanding Agenda items.

[15] I heard from the parties on the two outstanding issues raised in the Agenda, with the previous objections being addressed by the undertakings provided by the Applicant.

[16] The remaining issues focussed upon:

•  That there is no right to request causal conversion for the relevant casual employees (which excludes Teachers and School Officers, as there exist limitations on their maximum period of casual employment); and

•  That under the Agreement, a termination payment would be payable as late as one fortnight after termination, as opposed to 7 days as required by the Award.

[17] Following the hearing, a conference was conducted which the IEU and the Applicant attended; the ANMF having nothing else to add chose not to attend. At this conference the remaining agenda items were addressed and it appeared there may be the opportunity for a further conference to ameliorate these issues.

[18] On 2 November 2020, I directed the parties to attend a further conference to address the outstanding agenda items and copy of the written submissions of the Applicant (which included two further draft undertakings to address the outstanding issues) were provided to the unions. A copy of the Unions’ written submissions was requested.

[19] On 4 November 2020, the IEU provided their submissions. These addressed the submissions at the hearing and asserted that the further undertakings provided by the Applicant would prevent the Agreement passing the BOOT. In these further undertakings, the minimum and maximum hours that a part-time Services Staff employee could undertake were removed. The IEU raised concerns that removal of the 12-hour minimum would cause a financial detriment and therefore be a cause for concern in the Agreement passing the BOOT.

[20] These submissions were drafted after a meeting between the IEU and the Applicant on 3 November 2020. They therefore included the updated position of the IEU following those discussions. The new position highlighted that, provided current engagements were not altered, there would be no detriment:

Recent assertions from employers and impact on IEU Submissions

26 In discussion between the employer and employee representatives on Tuesday 3 November 2020, the employer representatives stated (in response to concerns identified by the IEUA both on 30 October and on 3 November 2020) that clauses 3.2.2, 3.2.3, and (particularly) 3.2.4 of the proposed enterprise agreement would prevent an employer from reducing the current minimum hours of employment of a part time employee.

27 Clause 3.2.4, provides as follows:

“Subject to clause 8.5.3 the agreed number of ordinary hours per week may be varied by mutual agreement. Any such agreed variation to the number of weekly hours of work will be recorded in writing.”

28 For the sake of completeness we record that clause 8.5.3 provides as follows:

“The normal starting and finishing times of ordinary hours shall be established at the point of engagement. The normal starting and finishing times can only be varied:

(a) by the employer giving two (2) weeks’ notice of the change; or

(b) where the employee agrees to the change.

29 The employers stated that clause 8.5.3 deals only with normal starting and finishing times, and does not deal with the quantum of hours for which an employee is engaged.

30 Further, the employers stated that clause 3.2.4 does not permit a unilateral variation of the quantum of ordinary hours by the employer, rather that clause only allows such a variation “by mutual agreement.”

31 If the employers’ statements, as detailed at points 26 to 30 above are accepted, then the employer could not reduce the minimum engagement of a part time employee (other than by mutual agreement), and hence such an employee would not be “likely” to suffer a “financial detriment”.

32 The further consequence, then, would be that the FWC would not be prevented from accepting the Undertaking (Attachment 1) as proposed by the employers.

33 However, the above reasoning would not be obvious to the average employee in a school or college. The IEUA, therefore, respectfully requests that if the Commission as currently constituted is minded to accept the proposed undertakings on behalf of the employers, then the Commission’s Decision specifically note that the Undertaking which would result in the removal of the minimum periods of ordinary hours is accepted on the basis that an employer cannot alter such periods, except by mutual agreement.

[21] On 11 November 2020, I wrote to the parties seeking confirmation that the undertakings addressed any remaining concerns. The IEU concurred with the undertakings provided, noting one caveat as follows:

“The IEUA, with one caveat, concurs with the Undertakings provided on behalf of the employers. In the event that the Commission approves the subject Agreements, then the IEUA respectfully reiterates its request that the Commission note in its Decision that the Undertaking which removes the minimum engagement provisions for certain part time employees is accepted on the basis that an employer cannot alter such minimum engagement periods, except by mutual agreement”.

[22] The ANMF and UWU supported the position of the IEU. For the purposes of this approval, I note that the removal of the minimum engagement provision for those particular part-time employees can only be done by mutual agreement.

[23] The Applicant has provided written undertakings. In accordance with s.190 of the Act, I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are attached to the Agreement and are taken to be a term of the Agreement.

Variations

[24] The Form 1 filed in respect of both agreements had several variations, which could be grouped into two categories:

•  Minor corrections to expression (changing time to 24-hour time), heading numbering and inserting asterixis to bring to employees’ attention their correct entitlements (the Minor Amendments); and

•  Correcting the uniform allowance found in the schedule from roughly $19.70 down to $6.00, so that it accurately reflects the employees’ intended entitlement (the Uniform Amendments).

The Minor Amendments

[25] As to the Minor Amendments, it is clear that this is an exercise of the intended function under s.217, or under s.586 of the Act.

[26] The corrections sought remove ambiguity, or alternatively increase clarity. Mr Spriggs submitted at the hearing on behalf of the IEU that “the range of other issues that are involved in the Form F1 we think are exceptionally sensible additions to make the document more readable”. 2 Mr Spriggs added:

“MR SPRIGGS:  Yes, well if I could pick one of the most obvious ones as an example, in July next year notwithstanding the body of the agreement says there's a 2.5 per cent wage increase, there's a cohort of employees that will receive a 4.5 per cent wage increase.  One of the variations is to put an asterisk and say that the actual wages are higher than the 2.5 per cent increase in the body of the agreement because of a re-alignment of classifications.  So as I've said in our opinion they are sensible and they actually go to making it, as you said, more readable, better understood.” 3

[27] As to the section under which any amendments or corrections would appropriately be made, the Applicant submitted:

“MR KELLY:  Just on those other issues, Deputy President, we think they'd be amenable to change pursuant to section 217, because the actual provisions in the agreement as they stand create an ambiguity for employees, so section 217 could be the discretion you could use or the alternative section 586 as well.” 4

[28] I am inclined to agree that the Minor Amendments should be allowed. This could be done either under s.217 or s.586 of the Act, but for clarity this amendment is made under s.217, as the Minor Amendments are properly concerned with some uncertainty, borne from various errors.

The Uniform Amendments

[29] In accordance with the agenda as filed, the Applicants sought the Uniform Amendments, as explained below, to “align the weekly quantum of the Uniform allowance for Services Staff to that outlined in Table 4 (No. 7) and Table 5 (No. 5) of the Agenda, namely “$6.00”. 5 The Applicant clarified at hearing:

“MR KELLY: … So in relation to when the applications for approval of the agreements were lodged in July, in addition to the form 16s there was also two form 1 applications for variations of the agreement, and I'd just like to go through those applications at this point in time. Now at the outset as was foreshadowed in the actual agenda that was submitted on 26 October, there is an amendment that we're seeking to be made to those form 1 applications and those amendments are basically to align the uniform allowance that is outlined in - it's on page 17 of the agenda, so that we're using that one consolidated document. There's an increase of those rates to $6. In the original form 1 application the amounts were $5.80, $5.90 and $5.96, from memory, but in conversations and discussions with my friend Mr Spriggs and given the BOOT issues, we're seeking an amendment to that form 1 for all those figures in the allowance for uniform to be $6.” 6

[30] In its written submissions the Applicant stated:

“The amount of $6.00 per week is the same for other employee cohorts (School Officers and Boarding Supervision Staff) in undertakings numbered 24 and 25 of Table 3 of the Agenda, which in turn is the same amount in the Modern Award (see clause 19.3(c)). This amendment removes any BOOT concerns arising from the original Form 1 Applications and the amounts that were outlined”. 7

[31] The Applicant submitted that “[w]ith these amendments being made”, the changes as sought in the Form F1 applications are not opposed by any respondent unions, and are not considered contentious as a result of discussions that took place between the parties further to the Commission’s directions of 7 October 2020.

[32] As to the amendments sought in relation to the uniform allowance, the Applicant submitted that the removal of the “operative $5.00 per week allowance from the currently applying enterprise agreements … as outlined in the Form 1 Applications was in error”. 8

[33] At hearing, the amendments as sought were raised as follows:

“MR KELLY: Yes, that's right. It would be page 15 and page 17 because there's two separate form 1s for each of the separate applications for approval of the agreements.

THE DEPUTY PRESIDENT: The numbers in there are $19, $20 and $20.69, is that - - -

MR KELLY: Which is in the current - those are the current figures in the agreement that was lodged and this is the application to amend those figures to the $6.

THE DEPUTY PRESIDENT: That's - - -

MR KELLY: And I've got some submissions in relation to that, Deputy President.

THE DEPUTY PRESIDENT: You should make those submissions, yes, I'm interested to see how you can give me the power to reduce some benefits that were put in an agreement that was voted on but - - -

MR KELLY: If you can bear with me.

THE DEPUTY PRESIDENT: If you have something novel and interesting I'm sure my colleagues down south would love to see it as well.

MR KELLY: Let's give it a whirl. So I'm assuming that you've accepted the amendments to that form 1 application, not the approval of the form 1 application but just the amendments to those $6. So with these amendments, if they've been accepted by the Commission, the changes then sought by the applicants in the form 1 applications are not opposed by any respondent unions or considered contentious as a result of the discussions that took place between the parties in accordance with the Commission's directions of 7 October 2020, which my colleague Mr Spriggs had confirmed at the outset of this hearing.

In relation to the amendments sought for the uniform allowance, there is information outlined in the form 1 as to the factual matrix that occurred there. The removal of the operative $5 per week allowance from the currently applying agreements which I have noted in paragraph 43 of my submissions, but I'll just take those as read, those changes to the removal of that $5 reference in the agreement was in error. In the Full Bench decision of the ANMF v Domain Aged Care, this is on page 11 of my submissions, and that's 2019 Full Bench decision, the majority in that case and referring to section 586 of the Act stated and I quote from paragraph 52, and I have copies of the decisions if you would like me to hand them up.

THE DEPUTY PRESIDENT: I think there's a quotation from Shakespeare in that one.

MR KELLY: Yes, I think there is.

THE DEPUTY PRESIDENT: If that's the one I remember.

MR KELLY: I'm not focusing on the quotation though.

THE DEPUTY PRESIDENT: No, it did strike me though that Shakespeare had entered the Commission.

MR KELLY: Yes, and it even got a footnote as well, so - sorry, did I hand up two - sorry, there's one copy for the union, sorry, Associate, I didn't have a fourth copy. So I've just handed up that for your information but I'll be concentrating on paragraph 52 which I have highlighted there wherein it says:

In our view, corrections or amendments to agreements should be made sparingly.

THE DEPUTY PRESIDENT: Yes.

MR KELLY: However, in that case the majority went on to state in the circumstances of that case which did involve an amendment to a disputed - so there was a disputed coverage clause between the parties in this which we would put is a significant issue in relation to these matters in your exercise of your discretion in relation to section 586. So it was a disputed coverage clause between the employer and the union, and I quote from paragraph 45 where the majority said:

This is the type of obvious error that would be amenable to correction under section 586.” 9

[34] The Applicant submitted the decision of Construction, Forestry, Maritime, Mining and Energy Union, 10 provided confirmation, which will be addressed later.

[35] The Applicant submitted that in seeking the Commission to exercise its discretion pursuant to s.586 in relation to the uniform allowance, “there are particular circumstances that apply in this case that are unique to the circumstances in other cases:

a) Importantly, the application to change the uniform allowance to $6.00 per week is not opposed by any party (ie. it is not a contested issue);

b) It has been the subject of discussions by the parties in accordance with the Commission Directions of 7 October 2020;

c) The change from the $5.00 per week outlined in the relevant clauses of the current applying enterprise agreements (see paragraph 43) above for details) was:

i) an obvious error;

ii) not the subject of any claims by any party in negotiations for the Agreements;

iii) not discussed at any time during negotiations or drafting of the Agreements;

iv) not part of the explanation of changes document relating to the Agreements (see Attachment 5 of the Form 17 Declarations for both Applications) provided to relevant employees as part of the “access period” requirements of the Act;

v) not expected to be mentioned by, or to, any employees in any information sessions about the Agreements as part of the “access period”;

vi) not expected to have been known or relied upon by any employees, or at the very least, a significant majority of employees who voted to approve the Agreements;

vii) not expected to have affected the approval of the Agreements in the employee ballots in any way, or at the very least, in any material way; and

d) If the change was not made as sought, then there would be extreme differences in the amount of the uniform allowance paid to different cohorts of employees covered by the same Agreements ($6.00 compared to $20.69 come 1 May 2021) that are not able to be rationally justified.” 11

[36] At hearing the Applicant submitted:

“… importantly the application to change the uniform allowance to $6 per week is not opposed by any party. That is it's not contested.” 12

[37] The Applicant submitted that in granting the corrections or amendments as sought, the Commission would be:

“…performing its functions in a manner consistent with the requirements of sections 577 and 578 of the Act, namely that:

a) “is fair and just”;

b) “promotes harmonious and cooperative workplace relations”; and

c) takes into accounts “equity, good conscience and the merits of the matter”. 13

The matter of $5 or $19 for the uniform allowance

[38] Further to the corrections sought under the Applicant’s Form F1 applications, the following discussion was had at hearing regarding the proposed error of $19 for uniform allowance:

“THE DEPUTY PRESIDENT:  It wasn't explicitly noted that - and we can have a look at it in a sec - that uniform, the rate was going to increase by a percentage or it was just going to be a rolled over amount or anything like that?

MR KELLY:  There was no mention of it at all.

THE DEPUTY PRESIDENT:  So it was silent completely.

MR KELLY:  The explanation documents were completely silent, there was no change to what had been happening from the previous agreement essentially.  And the previous agreement had, as outlined, it had in the clause that's specific in the schedule - I think it was schedule 12 of the EBA agreement, 15 is it depending on which one you're looking at.  In the schedule - and it outlined in the form 1, it noted that the uniform allowance per week was $5.  However, in the schedule that relates to the wages and allowance, it had a figure of 19 - the $19 figure we're referring to but that figure had been inserted into that particular provision at a late drafting processes of the EB8.  I won't go into the details of that because it's not really relevant here, Deputy President, but there was an inconsistency between the schedule 15 that referred to the $5 and the actual $19 that was noted in the schedule 1 wages and allowance clause.  So there was a complete inconsistency there.

THE DEPUTY PRESIDENT:  So the document - but the document that - - -

MR KELLY:  The EB8 document, the previous enterprise agreement.

THE DEPUTY PRESIDENT:  But what did people vote on?  Was it clear - in that document was there any inconsistency between the five and the 19 or was it just 19 in the schedule?

MR KELLY:  No, the error that had been made was that the actual $5 reference was incorrectly removed and it just referred to what was in schedule 1, which was the - - -

THE DEPUTY PRESIDENT:  And the schedule had 19.

MR KELLY:  But there was no - there was not - - -

THE DEPUTY PRESIDENT:  It would have helped if it had $5 in there.

MR KELLY:  Sorry?

THE DEPUTY PRESIDENT:  It would have helped your case if you'd had $5 in there but - - -

MR KELLY:  That's the issue in terms of trying to make the agreement more user friendly.  It was not identified that there was a difference and it was unknown to any of the employer representatives at any stage that that figure of $19 was somehow relevant to the uniform allowance, particularly when you consider that that's $1000 a year for actual laundry.  For just laundering - so it has no justification in relation to that amount, it was not even bargained as part of the previous agreement for EB8, it never came up.  It was just inserted at the very late stages of the drafting process that came along and the employees did not pick up that there was a difference at that time between what was in the schedule 1 which was the wages and allowance and what was the actual thing that was being paid, and it was operative for employees which was the $5.

At no stage - and it was only just towards the last part of the access period or even when the vote started that was actually identified as an issue by the employers.  It was never point of mind of any of the parties during these negotiations or that that would be an issue.  That's why we're saying even though you're looking at the issue that - I accept it's not an ambiguity, if you just look purely at the provisions of the current agreement that's been proposed to you.  However, we are relying on the fact that that is an obvious error that has been made when you look at the history of the processes and if it's not corrected there would be a significant difference between what laundry allowance is paid for some cohorts of employees which would be the $6, which is part of the undertakings which have been accepted by it, and then this amount of $20 per week.  It's in exercising your discretion under section 586, we think that it is totally relevant the fact that it's not disputed by the parties.  It's not contested by the parties.  It's not going to be taken forward by the parties.  It wasn't raised in the explanation documents and we would submit that it's an obvious error that can be corrected by section 586, in line with the references we've made to the Domain decision of the Full Bench majority, and also as happened in the CFMEU decision that we have in 2020 as well.

THE DEPUTY PRESIDENT:  That's only affecting the services staff?

MR KELLY:  It is only the services staff, Deputy President, that's correct.  Everyone else will be receiving the - what would be the expected rational laundry allowance of $6 per week.  It was - that $19 was never part of any bargain or agreement reached between the parties.

THE DEPUTY PRESIDENT:  How many approximately staff are in that sort of category, the services staff?  Just roughly, that's okay.

MR KELLY:  I think there could be - at the big schools there potentially could be 10 at each big school do you think, or there could be more.  Sorry, I'm looking around for help, it's like an auction here at the moment.

THE DEPUTY PRESIDENT:  That's okay, probably 1000 all up or something like that, in terms of total.

MR SPRIGGS:  Your Honour, it would depend on the type of school.

THE DEPUTY PRESIDENT:  Yes, of course.

MR SPRIGGS:  Whether a school has a boarding component there would be significantly more employees in that area.

THE DEPUTY PRESIDENT:  Yes, that'll just give me an idea of the impact I guess.  That's okay.

MR O'NEILL:  Sorry, if I could jump to my feet there, I guess amongst - I'm just sort of thinking in broad numbers of around about 12,000 employees in Brisbane Catholic Education there would be probably in the hundreds would be services staff across the 144 schools.  So is that of assistance?

THE DEPUTY PRESIDENT:  Gives me an idea anyway, yes.

MR KELLY:  Deputy President, in some of the larger schools that have significant grounds and plus with the boarding school component there'd be a - there'd be a higher proportion than those because they've got to look after a significant - - -

THE DEPUTY PRESIDENT:  Yes.

MR KELLY:  When you start looking at a place like Nudgee College et cetera, so there would be more but they've obviously a very big number of employees at those large schools anyway.  So the proportion is probably irrelevant, still between the - we could get some information for you.  It's hard to get some of the data from some of the employees in relation to it but we can't help you much more at this stage from the Bar, I'm sorry, Deputy President.

THE DEPUTY PRESIDENT:  The 19 figure, have you been able to find where that came from or what - - -

MR KELLY:  We have no idea, Deputy President.  We asked the union during the - when it was identified as where did that figure come from and we didn't have that explained to us and that was noted in our form 1.  I can't see where it could come from because it's a laundry allowance of $1000 a year effectively and that has no precedent.  Having worked in the police service many, many years ago as an industrial person, even the detective clothing allowance was only in the vicinity of about $2500.  So to have just laundry allowance and they're expected to buy suits et cetera for that, so I don't know any precedent where a $19 - that's - we are absolutely - a mystery to us.

THE DEPUTY PRESIDENT:  Yes, yes.  So you're saying using the explanations you've provided here that I could or should exercise my discretionary power to correct that.

MR KELLY:  In these very unusual circumstances, yes, Deputy President, that is what the applicants are asking, which is not being contested by the union in relation to that particular matter.

THE DEPUTY PRESIDENT:  I'd be just interested, Mr Spriggs, do you have anything to add or at least to put some colour on this.

MR SPRIGGS:  Your Honour, perhaps a little bit of further explanation and it is not to oppose what my friend is asking for.  As he has said we support the application to amend as it is now before you.  The $19 appeared some years ago and my friend has indicated that he has not found genesis of it.  We also have searched for that and not found genesis either.

THE DEPUTY PRESIDENT:  Right.

MR SPRIGGS:  It was in the last agreement, so the agreement which is still actually in operation.

THE DEPUTY PRESIDENT:  That's EB8?

MR SPRIGGS:  EB8.  In EB8 there was what you would call a classic anomaly.  I apologise if I'm repeating some of what my friend has said.  In the body of the schedule it did refer to $5 and some cents.  In the wages schedule which listed allowances it referred to the $19 figure, so there was a conflict between the body of the schedule and the allowance of schedule so far as the uniform allowance was concerned.  Our only comment here is that it would have been good for it to have been picked up last time round, not this time, but we do not - we do not say that to oppose the application because we accept that last time there was an anomaly, that anomaly was compounded by the initial removal of the $5 from the body of the schedule this time round, but that clerical action does not take away from the fact that there was an anomaly previously and that is what is sought to be corrected through this application.

THE DEPUTY PRESIDENT:  So if I have it correctly, EB8 had in the text, say for example, $5 or $5.20 or $5.80, whatever the amount was, but if you turned over to the schedule that was attached to that agreement it had $19.

MR SPRIGGS:  The allowances schedule, yes.

THE DEPUTY PRESIDENT:  Yes, so the schedule (indistinct).  Now during that period when EB8 occurred everyone was paid I assume the $5 allowance, $5.20, whatever it was.

MR KELLY:  That's correct, Deputy President.

THE DEPUTY PRESIDENT:  And even despite the schedule showing a much greater number.

MR SPRIGGS:  We do not (indistinct) with that.

THE DEPUTY PRESIDENT:  It wasn't agitated back in EB8 there was a difference between the two or people were happy to get through EB8 and move forwards and - - -

MR SPRIGGS:  Again, there were unique circumstances around EB8 but we would endorse your observation that there was nothing agitated in EB8.

THE DEPUTY PRESIDENT:  I guess I'm asking you to help me in terms of the understanding of where we might be able to - I have to be careful exercising (indistinct) it has to be used sparingly et cetera, so I'm very cautious.

MR KELLY:  And I thank and appreciate the submissions made by Mr Spriggs in relation to that.  I might just add just from my understanding and we had had that conversation previously with Mr Spriggs' point when this was identified, that it was not - this $19 was not bargained as part of EB8.  It was not agitated as EB8 as Mr Spriggs has said.  After the negotiation had been finalised and it was a big negotiation which went to new approaches model, there was very much extended industrial actions prior to the parties agreeing to the new approaches model.  So I think when everyone had finally had a sigh of relief that they had come to - and I wasn't there at the time, Deputy President, but there's a lot of war stories have been told to me about it, that a collective sigh of relief once that had come to an arrangement through new approaches.  Then it was about the drafting process, and it wasn't until about the late stages that I could try and work through from our computer system that this particular figure came up.  And it was well and truly after the - it was never discussed and it wasn't picked up by the employer representative at that time because everyone had been paying the $5 and that $5 was still in the schedule.

However, again when it came to this particular one as Mr Spriggs says, if anybody had identified that the removal of that $5 would have changed that particular amount then the parties would have talked about it and it would have been resolved quite quickly, in terms of it would have been that amount that would have applied - this is my submission at the moment, I'll let Mr Spriggs come up.

THE DEPUTY PRESIDENT:  Yes, yes.

MR KELLY:  Because the employers would not have accepted a laundry allowance equating to $1000 per week and I would suggest that the union at that particular time would have incredible difficulty trying to justify where that had came from.  So if the issue had come up, I would be suggesting that it would have been resolved in exactly the way that the parties are trying to resolve it now through the form 1 by a consent process.  That's why it is such an unusual circumstances which has never come up in previous decisions in relation to section 586 of the - - -

THE DEPUTY PRESIDENT:  Yes, yes.  So in EB8 you had that tension between the schedule and the text in the agreement.

MR KELLY:  Which no one knew about, Deputy President.

THE DEPUTY PRESIDENT:  No, okay.

MR KELLY:  No one new there was a tension.

THE DEPUTY PRESIDENT:  The payroll systems just look straight at - - -

MR KELLY:  It was just $5.

THE DEPUTY PRESIDENT:  - - - programmed to $5 or whatever and they paid it.  Not one of your 12,000 employees plus (indistinct) raised the issue when they looked at the schedule.  It just shows how well read these are, these documents are unfortunately.

MR KELLY:  334 pages, Deputy President.

THE DEPUTY PRESIDENT:  Yes.  No one identified that and obviously made a claim I guess.

MR SPRIGGS:  We can concur that there was no claims made through us in relation to that issue.

THE DEPUTY PRESIDENT:  Yes.  An alternative may be that as - to reduce that number in the schedule is to change - I think what Hatcher VP would call a sacred text, in his words would be to insert the number back into the agreement, so put the 5 - the number $6 and insert that back into the agreement.  In this case then it doesn't necessarily resolve the tension but it means I'm not changing something that people have voted on in a way that's seen as a reduction in their terms.  That may be what I have to offer in terms of taking something out of a schedule.  Because to remove something out of a schedule that's been voted on isn't a small matter.  I appreciate all the text and the sort of background around it but if there's only one dollar figure and I change it from 19 back to six, that's a lot of dollars that I have - people have voted on that I've said I've made a correction to and I guess - I understand my colleagues do say it should be used sparingly.  So one of the alternatives I might consider is that we insert the right number back into the document, which then is consistent with the previous EB8, the payroll systems continue to pick it up.

It still does then mean that if there's an employee out there that does raise that as an issue then there's consistency with EB8 in the way it's being managed and it was identified as an issue, documented and voted on, we put it back into the agreement and please don't bring EB10 through here.  It'll be the first thing I look at if it's me, that's for sure.  But that may well be somewhere that might be the easiest and best way to go without a risk of an employee raising it and then saying well you need to pay me $19 and that obviously getting legs because people will see that's got some benefit to them financially that's for sure.  There may have to be something in that text to say that this is the amount and not refer to the schedule for example, or something like that, just to take out the ambiguity.  Obviously I'm leaving - I'm putting ambiguity back into agreement so I face another issue there but it's a thought anyway to see how I can best manage that.  Given that like yourselves I'd like to get this through but I'm given considerable statutory and hurdles to get over to make sure it's approved.  Do you make comment?

MR KELLY:  Deputy President, from the applicants' perspective that would be something that we would accept if that was to be put forward.  The only issue I would raise in relation to that for transparency is that there would then be the issue of there's a lesser amount in the agreement that employers would be paying and obviously there'd be the issue about having those arguments later on which employers would be comfortable about, being able to justify that the lesser amount would apply.  But at the moment that $5 would be less than the $6 that's in the modern award.  So if you were to insert that $5 back into the amount from the Bar table the employers would pay the $6 in any event - - -

THE DEPUTY PRESIDENT:  Yes.

MR KELLY:  - - - or if you'd rather have it inserted into the agreement then we provide an undertaking of that $6 for the purposes of that.  So I'm just wanting to not confuse it but just wanting to me transparent.

THE DEPUTY PRESIDENT:  That's okay, well at this stage we're just trying to see if we can find a solution.

MR KELLY:  But I would - the employers would be paying $6 even if just $5 was put back into the agreement.

THE DEPUTY PRESIDENT:  Right, okay.  I understand.” 14

[39] This issue was clearly the subject of significant consideration and a matter I feel would align generally with the Commission’s objectives under s.577 and s.578, in the sense that it would be efficient and would promote the cooperative approach to workplace relations the parties have taken. Despite this, I am not satisfied the power exists and therefore, that I am capable of making the Uniform Amendments, either under s.217 or under s.586 of the Act.

[40] Under s.217, an ambiguity or uncertainty must first be identified before the power to amend is enlivened – there is “no general power to vary agreements to correct mistakes or errors.” 15 The current Agreement is not subject to any uncertainty or ambiguity; unfortunately for the Applicants, the Agreement has removed any previous reference to the lower uniform allowance. On a plain reading, the Agreement is clear as to what the uniform allowance is. While I am conscious of the context and history of the previous iterations of the agreement, this does not change the Agreement as it stands currently.

[41] As to s.586, the decision of ANMF v Domain is often quoted and relevantly provides:  16

“[52] The Agreement was plainly intended to cover the employees in the classifications in the Agreement. What other purposes the attachment of a classification structure might have is not explained by the ANMF. To contend that the Agreement did not cover any employees at all prior to the Commissioner’s amendment, when the intended coverage is so abundantly clear, is in our view an unsustainable argument founded on a literal and un-contextualised reading of the instrument. The ANMF contended that the amendment made the Agreement substantively something different from what the employees had voted on. Their submissions cite the king in Shakespeare’s Henry IV, who says to Falstaff ‘presume not that I am the thing I was.’ 25 But here we consider the contention is ‘much ado about nothing’. It was not necessary for the Agreement to be amended under s 586. In our view, corrections or amendments to agreements should be made sparingly. The Commission should not concern itself with infelicities of drafting in enterprise agreements: ‘Let me be that I am and seek not to alter me.’26

[53] At the conclusion of the proceedings, the Full Bench identified that an additional change had been made to clause 4 of the Agreement that was not brought to the Commissioner’s attention. Opal submitted to Commissioner McKinnon a revised coverage clause with the new wording marked up (i.e. ‘cover employees who perform the work described in Schedule A and B of this Agreement’). However, the new text also inserted at clause 4(b) the words ‘and North Lakes’ after the words ‘trading facilities in Queensland including Ashmore, Kirra Beach, Leamington, Caloundra, Nambour and Kawana’. This change was not marked-up. The Full Bench invited the parties to make submissions on this matter. Opal contended that this was an oversight that arose because it solicitors amended a different version of the clause from the one that was actually voted on. The ANMF sought leave to amend its notice of appeal to include a new ground 11, contending that the Commissioner erred by amending the Agreement to include this change.

[54] We accept that the inclusion of the additional words ‘and North Lakes’ was inadvertent. The locations referred to in clause 4(b) are inclusive, and so the addition of these words did not change the coverage of the Agreement. These words were not brought to the Commissioner’s attention and there is nothing at all to suggest that she actually decided to amend the Agreement to include them. This is the type of obvious error that would be amendable to correction under s 586. However, as we have determined to quash the Approval Decision, it is not necessary for us to correct this error and remove the words ‘and North Lakes’. “corrections or amendments to agreements should be made sparingly” and I am not satisfied the Uniform Amendments are of the kind that can be made.”

[42] The Applicants made reference in their submissions to a recent decision applying ANMF v Domain, where it was stated: 17

“In ANMF v Domain Aged Care (Qld) Pty Ltd [2019] FWCFB 1716, the Full Bench majority accepted that, while the power to allow a correction to an agreement under s 586 should be used sparingly, obvious errors could be rectified (at [52] and [54]). In my view the present matter presents a case of obvious error in the Agreement and it is appropriate to allow its correction.”

[43] That case concerned changing the correct name of the company, which was incorrect under the agreement - Deputy President Colman considered this an obvious error. I agree that a name change is an example of an obvious error, the type of which can be corrected. In approving that agreement, the CFMMEU submitted that “employees were not likely to have been disadvantaged”. 18 To alter the text of an agreement to decrease the quantum of an allowance is not within the same realm and I am not satisfied I can make such an amendment under s.526.

[44] Practically, given the agreement of all parties, it would be beneficial to be able to make the Uniform Amendments. However, I am not satisfied that I have the powers at my disposal to do so, given the substantial impact such a change would have on the entitlement under the Agreement.

Conclusion

[45] I am satisfied that in accordance with s.188(1), the Applicant took all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, were explained to the employees and the explanation was provided in an appropriate manner.

[46] I am satisfied that each of the requirements of ss.186, 187, 188, and 190 as are relevant to this application for approval have been met.

[47] In accordance with s.201(2), I note the Agreement covers the ANMF, the UWU, and the IEU.

[48] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 December 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

 1   [2020] FWCA 6351

 2   Transcript at PN238.

 3   Transcript at PN240.

 4   Transcript at PN242.

 5 Submissions of the Applicant filed 30 October 2020, at [39].

 6   PN133.

 7 Submissions of the Applicant filed 30 October 2020, at [40].

 8 Submissions of the Applicant filed 30 October 2020, at [43].

 9   Transcript at PN135-154.

 10   [2020] FWCA 2017.

 11 Submissions of the Applicant filed 30 October 2020, at [47].

 12   Transcript at PN159.

 13 Submissions of the Applicant filed 30 October 2020, at [48].

 14   Transcript at PN161-230

 15   Australian Nursing Federation [2011] FWA 2430, [44].

 16   Australian Nursing and Midwifery Federation v Domain Aged Care (Qld)[2019] FWCFB 1716, [52] (ANMF v Domain).

 17   Construction, Forestry, Maritime, Mining and Energy Union [2020] FWCA 2017, [5].

 18   Ibid, [4].

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