United Workers' Union

[2024] FWCA 4352

[2024] FWCA 4352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

United Workers' Union

(AG2024/4779)

UNITED WORKERS UNION AND GLAD GROUP SERVICES 5 STAR CLEANING AND SAFEGUARD QIC SHOPPING CENTRE AGREEMENT 2024

Cleaning services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 6 DECEMBER 2024

Application for variation of the United Workers Union and Glad Group Services 5 Star Cleaning and Safeguard QIC Shopping Centre Agreement 2024

Introduction

1. On 12 November 2024, I approved the United Workers Union and Glad Group Services 5 Star Cleaning and Safeguard QIC Shopping Centre Agreement 2024.

1. On 2 December 2024, an application was made by the United Workers’ Union (Applicant) pursuant to section 218A of the Act to further vary the Agreement to correct or amend an obvious error, defect or irregularity in the Agreement.

1. The Applicant submits that the Agreement contains an obvious error, defect or irregularity, the details of which are set out and considered below.

Statutory Provisions

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) Bill 2022, provides for the variation of an enterprise agreement to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:

   (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 (EM) that supports the above-referred Bill relevantly states 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.

Consideration

1. The Applicant seeks to vary the Agreement as follows:

·     $42.97 is deleted from the table which appears under the heading “Full-time and part-time employees” at Schedule 2 Part A, A.2(b) and replaced with $41.97

·     $43.05 is deleted from the row “Level 3” of the table which appears under the heading “(ii) Casual employees” at Schedule 2, Part B, B.1(a) and replaced with $43.79.

1. The Applicant submits that pursuant to clause 23.1 and Schedule 3, Part C, clause C.4 (Cleaning Services Employees – Overtime) of the Agreement, the Agreement at Schedule 2 Part A, A.2(b) contains an incorrectly calculated rate of overtime pay for permanent level 3 cleaning services employees of $42.97 when the correct rate is $41.97.

1. The Applicant further submits that pursuant to clause 23.2 and Schedule 4, Part C, clause C.4 (Security services employees – Overtime) and clause C.5 (Security services industry employees – Penalty rate) of the Agreement, the Agreement at Schedule 2, Part B, B.1(a) contains an incorrectly stated rate of pay for casual level 3 services employees of $43.05 (which is the level 2 permanent night rate) when the correct rate is $43.79.

1. As Deputy President Masson sets out in Doctors in Training (Victorian Public Health   Sector) (AMA Victoria/ASMOF) (Single   Interest   Employers) Enterprise Agreement 2022-2026 [2022] FWCA 4390:

[9]       It is apparent from the text of s. 218A and the supporting EM 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[1] (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, 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 217 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 that 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.

1. In the present case the contended errors are that of a failure to correctly calculate the rate of overtime pay for permanent level 3 cleaning services employees at Schedule 2 Part A, A.2(b) of the Agreement and a failure to correctly calculate the rate of pay for casual level 3 services employees at Schedule 2, Part B, B.1(a) of the Agreement. The errors were not identified until after the voting process to vary the Agreement was completed and are clearly errors of substance and omission.

1. The views of Glad Security Pty Ltd T/A Glad Group Services (Employer) were sought in relation to the variation application. The Employer consents to the application and orders sought by the United Workers’ Union.

1. I am satisfied that the errors as outlined above are obvious errors that fall within the scope of s 218A(1) of the Act.

Conclusion

1. For the reasons set out above, I am satisfied that the errors in Schedule 2 Part A, A.2(b) and Schedule 2, Part B, B.1(a) of the Agreement are obvious errors within the meaning of s 218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by an employee organisation covered by the Agreement, thus satisfying the requirements of s 218A(2)(b)(iii) of the Act. The variation sought will operate from 19 November 2024. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

[1] [2021] FWCFB 453.

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