Victorian Hospitals’ Industrial Association

[2024] FWCA 697

[2024] FWCA 697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Victorian Hospitals’ Industrial Association

(AG2023/5482)

ALLIED HEALTH PROFESSIONALS (VICTORIAN COMMUNITY HEALTH CENTRES) (MULTI-EMPLOYER) ENTERPRISE AGREEMENT 2022-2026

Health and welfare services
COMMISSIONER WILSON	MELBOURNE, 22 FEBRUARY 2024

Application for approval of the Allied Health Professionals (Victorian Community Health Centres) (Multi-Employer) Enterprise Agreement 2022-2026 – s.218A variation to correct or amend obvious error, defect or irregularity.

Approval

1. An application has been made for approval of an enterprise agreement known as the Allied Health Professionals (Victorian Community Health Centres) (Multi-Employer) Enterprise Agreement 2022-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Victorian Hospitals’ Industrial Association. The Agreement is a multi-enterprise agreement.

1. The Employers have provided written undertakings. A copy of the undertakings is attached in Annexure A. 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 taken to be a term of the agreement.

1. Subject to the undertakings referred to above, 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.

1. The Health Services Union (HSU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 February 2024. The nominal expiry date of the Agreement is 1 December 2026.

Variation

1. Section 218A provides for the variation of enterprise agreements 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. In recent decisions of the Fair Work Commission[1] (the Commission), it has been noted that 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 purpose of the section is to remove the complexity associated with varying enterprise agreements which contain an obvious error, defect or irregularity by creating a simpler process for corrections to be made.

1. Before an amendment under s.218A can be made, the Commission must first be satisfied that an obvious error, default or irregularity (whether in substance or form) exists. If it is found that such an error, default of irregularity exists, the Commission may (not must) vary the agreement.

1. The Applicant on 30 January 2024 made an application under s.218A to correct or amend the following:

·Appendix Two – Weekly Wage Rates for Allied Health Professionals – Page 145: In the header of the table, in column 5, correct the reference from “1 May 2024” to “Commencement of Agreement” and re-align the formatting by moving the annual leave loading table to the next page.

·Appendix Three - Allowance and Other Rates – Page 147 to 149: In the header of the table correct the reference:

a.   in column 3 from “1-Jul-23” to “1-Jun-23”;

b.   in column 5 from “1-Jul-24” to “1-Jun-24”;

c.   in column 6 from “1-Jul-25” to “1-Jun-25”;

d.   in column 7 from “1-Jul-26” to “1-Jun-26”.

·Appendix Four - Classification Definitions Applying to Allied Health Professionals – Section B – AHP1 Classification Descriptors – Page 153: In sub-clause 2.1, correct the numbering of the sub-clauses in it from “(e) (f) and (g)” to “(a) (b) and (c)”.

1. I sought the views of the bargaining representatives on the s.218A application. The HSU confirmed it supported the application.

1. For the reasons set out above, I am satisfied that the errors identified were errors within the meaning of s.218A(1) of the Act. While s.218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied that the amendments identified above should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act.

1. The variation sought will operate from the date the Agreement commences operation, 29 February 2024.

Order

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

·Appendix Two – Weekly Wage Rates for Allied Health Professionals – Page 145: In the header of the table, in column 5, the reference to “1 May 2024” is deleted and replaced with “Commencement of Agreement” and the format is re-aligned by moving the annual leave loading table to the next page.

·Appendix Three - Allowance and Other Rates – Page 147 to 149: In the header of the table the following referenced are amended:

a.   in column 3 from “1-Jul-23” to “1-Jun-23”;

b.   in column 5 from “1-Jul-24” to “1-Jun-24”;

c.   in column 6 from “1-Jul-25” to “1-Jun-25”;

d.   in column 7 from “1-Jul-26” to “1-Jun-26”.

·Appendix Four - Classification Definitions Applying to Allied Health Professionals – Section B – AHP1 Classification Descriptors – Page 153: In sub-clause 2.1, the numbering of the sub-clauses are amended from “(e) (f) and (g)” to “(a) (b) and (c)”.

1. The variation will operate from 29 February 2024. The published Agreement will contain the corrections described in the above order.

COMMISSIONER

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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