The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education

[2024] FWCA 2633

[2024] FWCA 2633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education

(AG2024/2185)

CATHOLIC EMPLOYERS SINGLE ENTERPRISE COLLECTIVE AGREEMENT – DIOCESAN SCHOOLS OF QUEENSLAND 2023-2026

Educational services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 19 JULY 2024

Application for variation of the Catholic Employers Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2023 - 2026

1. The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education (the Applicant) has applied pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Catholic Employers Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2023-2026 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by the Commission on 17 January 2024 and commenced operation on 24 January 2024. The Applicant is an employer covered by the Agreement. The Independent Education Union of Australia (IEUA), the Australian Nursing and Midwifery Federation (ANMF) and the United Workers’ Union (UWU) are employee bargaining representatives covered by the Agreement.

1. A Form F1 was lodged with the application which sought to vary provisions of the Agreement pursuant to section 218A of the Act (the Form).

1. The Form highlighted errors within the Agreement at clauses S11.4 and S11.5 of Schedule 11 as outlined in Q2.1 of the Form.

1. I am satisfied that s.218A applies to the variations at paragraph 4 of this Decision.

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:

“(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. As has been noted in recent decisions of the Commission,[1] s.218A of the Act is akin to 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. The evident purpose of s.218A 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, there first must be satisfaction 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. The Applicant submits that the amendments seek to address omissions at clauses S11.4 and S11.5 for term-time employees which occurred unintentionally in the drafting and transition from the Previous Agreement to the Current Agreement. It says that it was the intention of the parties to incorporate the undertakings from the previous agreement and during the drafting, failed to incorporate undertaking 2 of the previous Agreement. The Applicant submits that the amendments would not result in any disadvantage to employees and that the other four employers covered by the Agreement support the application.

1. On 24 June 2024, my chambers wrote to the IEUA, ANMF and UWU, seeking their views in relation to the application. The IEUA advised that it supports the application and the ANMF and UWU advised that they have no objection to the variations sought.

1. I am satisfied that the errors in the Agreement outlined at paragraph 4 of this Decision are obvious errors. I am satisfied the amendments 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 errors are readily identified, as are the corrections 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 errors identified at paragraph 4, will be amended as per the order.

Order

1. I order, pursuant to s.218A of the Act, that clauses S11.4 and S11.5 be amended as outlined in red in Annexure A.

1. The variations pursuant to s.218A above will operate from 24 January 2024.

DEPUTY PRESIDENT

Annexure A

[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

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