DECISION - Victoria State Government

1 1 Fair Work Act 2009 Enterprise agreementThe State of Victoria (AG2020/2580)VICTORIAN PUBLIC SERVICE ENTERPRISE AGREEMENT 2020 State and Territory Government administrationDEPUTY PRESIDENT GOSTENCNIKMELBOURNE, 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 Agreement2020(Agreement). The application was made pursuant to of the Fair Work Act 2009(Act).

2 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 timeand placeat which the vote was to occurand the voting method to be usedby the start of the access period as required by (3) of the same 76 employees had likewise not been provided with a copy of, or access to, the written text of the Agreement as required (2) of the Act.

3 The Applicant submits that the employees concernedwere 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,particularlythe 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 relevant assessmentis whether the employer took all reasonable stepsto notify employees of the matters in (3) and to ensure the matters in (2).

4 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,1I am satisfied that the error is a minor procedural or technical error for the purposes of (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 (2) with the consequence that the requirement in (2)(a) of the Actis met.

5 1[2019] FWCFB 318[2020] FWCA 5215 DECISION [2020] FWCA 52152[3]The Applicant advised the Commission of severalcorrections thatit proposed be made to the Agreement. The changes proposed are said to address minor errors identified during the ballot Applicant filed an amended version of the Agreementtogether with the Application and requested that the Commission exercise its powers under of the Act to correct the Agreement. I expressed a preliminary view that the corrections sought could not be made pursuant to of the Act.

6 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 of the Act. I suggested that the Applicant might seek to make an application of the Act and indicated that I would waivethe 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 Applicant subsequently indicted that it did wish to make an application under of the Act in respect of the list of correction filed with the application.

7 [4]Section 217of 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.

8 [5]A finding of ambiguity or uncertainty in an enterprise agreement is a condition precedent to the exercise of power under I consider that the errors the variations seek to address plainlycreate uncertainty. I am satisfied that the variations should be madeto remove the uncertainty and that it is appropriate to do so pursuant to of the Act. It is the variedAgreement that has been there be doubt as to whether the power in 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.

9 In the end the practical result is the same. On commencement, the Agreement approved will be one from which the uncertainlybrought about by the various errorshas been removed by a variation under [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][2020]

10 FWCA 52153 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 (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 (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.