BASS COAST SHIRE COUNCIL ENTERPRISE BARGAINING AGREEMENT 2024

Application for variation of the Bass Coast Shire Council Enterprise Bargaining Agreement 2024

[1] Bass Coast Shire Council (the Applicant) has made an application pursuant to s 218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Bass Coast Shire Council Enterprise Bargaining Agreement 2024[1] (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

[2] The Agreement was approved by the Commission on 31 January 2025 and commenced operation on 7 February 2025.[2] The Australian Municipal, Administrative, Clerical and Services Union (ASU) and Australian Nursing and Midwifery Federation (ANMF) are covered by the Agreement pursuant to s 201(2) of the Act. The Applicant submits that the Agreement contains an error, defect or irregularity, the details of which are set out and considered below.

[3] Following receipt of the application, correspondence was sent to the unions covered by the Agreement on 20 & 24 July 2024 seeking advice from those unions on whether the variation application was supported or opposed. The ASU advised my Chambers on 25 July 2025 that it supported the variation application. No response was received from the ANMF.

[4] 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 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."

[5] 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."

[6] The Applicant seeks to amend the Table of Pay Rates at Appendix B of the Agreement in the following way;

1. That, effective from 12 July 2025, the 'Band 6 Level D' pay rate of $2073.36 be removed (left blank) as this classification level does not exist in practice.

2. That effective from 12 July 2025, the pay rate for 'Band 7 Level A' of $2152.97 be amended to $2,073.36 per week, which reflects a 3% increase from the approved 'Band 7 Level A' rate of $2,012.97 effective from sign-off.

3. That all other pay rates in the 'Table of Pay Rates' in Appendix B remain unchanged.

[7] The Applicant submits there is a clear typographical error in the Table of Pay Rates in Appendix B in that the cell for 'Band 6 Level D' in the table containing rates effective from 12 July 2025 contains an amount when it should have been left blank. No such classification level exists in practice and no dollar amount appears for this level in other tables. It further submits that there is a clear typographical error in that the pay rate shown for 'Band 7 Level A' in the table containing rates effective from 12 July 2025 is the same as that for 'Band 7 Level B', whereas the agreed pay increase for 'Band 7 Level A' was to be 3% higher than the rate effective at sign-off. The Applicant further submits that the typographical errors were not identified prior to approval of the Agreement, that the errors require formal correction and the ASU as the union representing employees impacted by this application for variation have been consulted and have indicated their support for the variation.

[8] Relevantly, I made the following observations in an earlier decision in dealing with a s 218A application by the Victorian Hospitals' Industrial Association 'to correct or amend an error, defect or irregularity' in the Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026;

"[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 (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."[3]

[9] Having regard to the above and the ASU's support for the variation, I am satisfied that the inadvertent typographical error in the Table of Pay Rates at Schedule B of the Agreement is an error that arose during drafting of the Agreement prior to the ballot for approval of the Agreement.

[10] For the reasons set out above, I am satisfied that the typographical errors in the Table of Pay Rates at Schedule B of the Agreement are 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 the employer covered by the Agreement, thus satisfying the requirements of s 218A(2)(b)(i) of the Act. The variation sought will operate from 31 July 2025. An order giving effect to this decision will be separately issued.

[11] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[2] [2025] FWCA 412.

[3] [2022] FWCA 4390.

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