[2020] FWCA 5215 DECISION Fair Work Act 2009 s.185—Enterprise agreement The State of Victoria (AG2020/2580) VICTORIAN PUBLIC SERVICE ENTERPRISE AGREEMENT 2020 State and Territory government administration DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 2 OCTOBER 2020 Application for approval of the Victorian Public Service Enterprise Agreement 2020. [1] An application has been made for approval of an enterprise agreement known as the Victorian Public Service Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the State of Victoria. The Agreement is a single enterprise agreement. [2] Supplementary material provided with the application discloses that during the access period the employer became aware that 76 of the 50,719 employees to be covered by the Agreement had not been notified of the time and place at which the vote was to occur and the voting method to be used by the start of the access period as required by s.180(3) of the Act. The same 76 employees had likewise not been provided with a copy of, or access to, the written text of the Agreement as required s.180(2) of the Act. The Applicant submits that the employees concerned were provided with a copy of, or had access to, the written text of the Agreement and were notified of the time and place at which the vote was to occur and the voting method to be used prior to the conclusion of the access period. In all the circumstances, particularly the large number of employees covered by the Agreement and the very small number affected (significantly less than 1% of the cohort covered by the Agreement), notwithstanding the error, I am satisfied that there has been compliance. The relevant assessment is whether the employer took all reasonable steps to notify employees of the matters in s.180(3) and to ensure the matters in s.180(2). The material filed by the Applicant satisfies me that it did so. If I am wrong in this conclusion, then having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,1 I am satisfied that the error is a minor procedural or technical error for the purposes of s.188(2)(a) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) with the consequence that the requirement in s.186(2)(a) of the Act is met. 1 [2019] FWCFB 318 1 [2020] FWCA 5215 [3] The Applicant advised the Commission of several corrections that it proposed be made to the Agreement. The changes proposed are said to address minor errors identified during the ballot period. The Applicant filed an amended version of the Agreement together with the Application and requested that the Commission exercise its powers under s.602 of the Act to correct the Agreement. I expressed a preliminary view that the corrections sought could not be made pursuant to s.602 of the Act. Further, and consistent with a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v Mechanical Maintenance Solutions Pty Ltd2, I expressed doubt that the corrections sought could (or as a matter of discretion should) be made pursuant to s.586 of the Act. I suggested that the Applicant might seek to make an application under s.217 of the Act and indicated that I would waive the requirement that the application be made using the approved form. The Commission may dispense with compliance with any provision of the Fair Work Commission Rules 2013 (Rules) either before or after the occasion for compliance arises under Rule 6 of the Rules. The Applicant subsequently indicted that it did wish to make an application under s.217 of the Act in respect of the list of correction filed with the application. [4] Section 217 of the Act provides: “217 Variation of an enterprise agreement to remove an ambiguity or uncertainty (1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following: (a) one or more of the employers covered by the agreement; (b) an employee covered by the agreement; (c) an employee organisation covered by the agreement. (2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.” [5] A finding of ambiguity or uncertainty in an enterprise agreement is a condition precedent to the exercise of power under s.217. I consider that the errors the variations seek to address plainly create uncertainty. I am satisfied that the variations should be made to remove the uncertainty and that it is appropriate to do so pursuant to s.217 of the Act. It is the varied Agreement that has been approved. If there be doubt as to whether the power in s.217 is available to the Commission before an enterprise agreement the subject of an approval application is approved, I would exercise my power to vary the Agreement to remove the uncertainty immediately after the Agreement is approved by me. In the end the practical result is the same. On commencement, the Agreement approved will be one from which the uncertainly brought about by the various errors has been removed by a variation under s.217. [6] In correspondence to my chambers on 3 September and 21 September 2020, an employee bargaining representative for the Agreement submitted that the Commission is required to have regard to the Victorian Long Service Leave Act 2018 (Victorian LSL Act) in approving the Agreement. In short compass, the Applicant submits that in approving the 2 [2020] FWCFB 1918 at [33] 2 [2020] FWCA 5215 Agreement, the Commission is not required to consider the Victorian LSL Act, under the National Employment Standards employees to be covered by the Agreement are entitled to long service leave in accordance with the terms of the Victorian Public Service Award 2005, and the long service leave provisions in the Agreement meet the requirements of s.186(2)(c) of the Act. I accept the Applicant’s submission in this regard. [7] Section 113 of the Act deals with entitlement to long service leave. For the purposes of s.113(3) of the Act, I am satisfied that there are applicable award-derived long service leave terms for the employees that will be covered by the Agreement. The Victorian Public Service Award 2005 would have provided minimum long service leave entitlements to employees if, at the test time, the employees had been in their current circumstances of employment. Those terms constitute the National Employment Standards entitlement to long service leave for those employees. Given that the long service leave provisions of the Agreement are equal to or more generous that the applicable award-derived long service leave entitlements, I am satisfied that it is consistent with the National Employment Standards. [8] On 25 September 2020, the Commission received correspondence from two employees who say they are covered by the Agreement. The correspondence concerned, inter alia, the timing of the Agreement’s approval and did not raise any matter concerning the requirements set out in ss.186 and 187 of the Act. There is no discretion to consider complaints about an enterprise agreement beyond those set out in ss.186 and 187. [9] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. [10] The Applicant has provided written undertakings in response to my concerns about whether the better off overall test and the National Employment Standards approval requirements had been met. 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. [11] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, 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. [12] The Australian Nursing and Midwifery Federation and the CPSU, the Community and Public Sector Union, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the declarations provided by the organisations, I note that the Agreement covers the organisations. 3 [2020] FWCA 5215 [13] The Agreement was approved on 2 October 2020 and, in accordance with s.54, will operate from 9 October 2020. The nominal expiry date of the Agreement is 20 March 2024. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <AE509129 PR723173> 4 [2020] FWCA 5215 ANNEXURE A 5 [2020] FWCA 5215 6 [2020] FWCA 5215 7 [2020] FWCA 5215 8 [2020] FWCA 5215 9 [2020] FWCA 5215 10 [2020] FWCA 5215 11 [2020] FWCA 5215 12 [2020] FWCA 5215 13 [2020] FWCA 5215 14 [2020] FWCA 5215 15 [2020] FWCA 5215 16 [2020] FWCA 5215 17 [2020] FWCA 5215 18 Victorian Public Service Enterprise Agreement 2020 Victorian Public Service Enterprise Agreement 2020 Table of Contents Section I – Core Terms and Conditions of Employment ...............................................