Victorian Hospitals' Industrial Association

[2024] FWCA 3634

[2024] FWCA 3634

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Victorian Hospitals’ Industrial Association

(AG2024/3525)

SPECIALIST DENTISTS’ AND SPECIALIST DENTISTS’ IN TRAINING DENTAL HEALTH SERVICES VICTORIA ENTERPRISE AGREEMENT 2024-2028

Health and welfare services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 18 OCTOBER 2024

Application for approval of the Specialist Dentists’ and Specialist Dentists’ in Training Dental Health Services Victoria Enterprise Agreement 2024-2028

1. An application has been made for approval of an enterprise agreement known as the Specialist Dentists’ and Specialist Dentists’ in Training Dental Health Services Victoria Enterprise Agreement 2024-2028 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Victorian Hospitals’ Industrial Association. The Agreement is a single enterprise agreement.

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

1. The agreement title in the Notice of Representational Rights (NERR) distributed to employees is slightly different to the agreement title in clause 1 of the Agreement. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departure from the NERR requirements under s.174 of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.

1. I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

·           Clause 51.5(b).

However, noting clause 5.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 October 2024. The nominal expiry date of the Agreement is 31 December 2027.

Variation

1. The Applicant has simultaneously sought to vary provisions of the Agreement pursuant to section 218A of the Act (the Variation).

1. The Applicant highlighted errors in the Agreement as follows:

Sub-clause	Current wording	Proposed wording
Clause 1	This Agreement will be known as the Specialist Dentists’ and Specialist Dentist’s in Training Dental Health Service Victoria Enterprise Agreement 2024-2028.”	This Agreement will be known as the Specialist Dentists’ and Specialist Dentist’s in Training Dental Health Services Victoria Enterprise Agreement 2024-2028.”
Subclause 11.3	(a)    Employee, Employer, or registered organisation, pursuing matters of discrimination in any State or Federal jurisdiction, including any application to the Australian Human Rights Commission; or  (b)    the exemptions in section 351(2) of the Act.	(b) Employee, Employer, or registered organisation, pursuing matters of discrimination in any State or Federal jurisdiction, including any application to the Australian Human Rights Commission; or  (c) the exemptions in section 351(2) of the Act.
Subclause 15.2(d)	Continuity of Service at clause 15.8 means”	Continuity of Service means
Subclause 16.1(c)	including by a ADAVB	including by the ADAVB
Subclause 16.3(b)(iv)	including a ADAVB representative	including an ADAVB representative
Subclause 26.1(a)(v)	Post-graduate training,	Post-graduate training.
Subclause 26.5(d)(i)	The previous contract contain an option	The previous contract contained an option
Subclause 26.5(d)(ii)	is more than 2 year,s	is more than 2 years
Subclause 50.1(h)	Pay means remuneration for an Employee’s normal weekly hour sof work calculated based on the greater of the following calculations	Pay means remuneration for an Employee’s normal weekly hours of work calculated based on the greater of the following calculations
Subclause 50.8(b)	any   such	any such
Subclause 64.2	based on the average ordinary hours worked overt the past 6 months.	based on the average ordinary hours worked over the past 6 months.
Subclause 72 – Level 3A(l)	Willingness to participate in clinical and other performance assessment of self colleagues.	Willingness to participate in clinical and other performance assessment of self and colleagues.

1. I am satisfied that s.218A applies to the variations at paragraph 7 above.

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 typographical errors in the Agreement.

1. I am satisfied that the typographical errors in the Agreement outlined at paragraph 7 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. There are no reasons not to exercise my discretion and good reasons to do so. The errors identified at paragraph 7 will be amended as per the order.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to read as follows:

Sub-clause

Amendment

Clause 1

This Agreement will be known as the Specialist Dentists’ and Specialist Dentist’s in Training Dental Health Services Victoria Enterprise Agreement 2024-2028.”

Subclause 11.3

(b) Employee, Employer, or registered organisation, pursuing matters of discrimination in any State or Federal jurisdiction, including any application to the Australian Human Rights Commission; or 

(c) the exemptions in section 351(2) of the Act.

Subclause 15.2(d)

Continuity of Service means

Subclause 16.1(c)

including by the ADAVB

Subclause 16.3(b)(iv)

including an ADAVB representative

Subclause 26.1(a)(v)

Post-graduate training.

Subclause 26.5(d)(i)

The previous contract contained an option

Subclause 26.5(d)(ii)

is more than 2 years

Subclause 50.1(h)

Pay means remuneration for an Employee’s normal weekly hours of work calculated based on the greater of the following calculations

Subclause 50.8(b)

any such

Subclause 64.2

based on the average ordinary hours worked over the past 6 months.

Subclause 72 – Level 3A(l)

Willingness to participate in clinical and other performance assessment of self and colleagues.

1. The variations pursuant to s.218A above will operate from 25 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.

DEPUTY PRESIDENT

[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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