Adapt-A-Lift Group Pty Ltd

[2023] FWCA 1094

[2023] FWCA 1094

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Adapt-A-Lift Group Pty Ltd

(AG2023/911)

ADAPT-A-LIFT GROUP ENTERPRISE AGREEMENT (VICTORIA & TASMANIA) 2023

Vehicle industry
DEPUTY PRESIDENT BELL	MELBOURNE, 17 APRIL 2023

Application for approval of the Adapt-A-Lift Group Enterprise Agreement (Victoria & Tasmania) 2023 – s.218A variation to correct or amend obvious error.

Approval

1. An application has been made for approval of an enterprise agreement known as the Adapt-A-Lift Group Enterprise Agreement (Victoria & Tasmania) 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer, Adapt-A-Lift Group Pty Ltd. The Agreement is a single enterprise agreement.

1. The employer has 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. Pursuant to s.201(3), 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. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. While the Agreement states it shall operate from the date of approval, s.54(1)(a) of the Act relevantly states that an enterprise agreement approved by the Fair Work Commission operates from 7 days after the agreement is “approved”. The Agreement was approved on 17 April 2023 and, in accordance with s.54 of the Act, will operate from 24 April 2023. The nominal expiry date of the Agreement is 16 April 2027.

Variation

1. The Agreement lodged contained an error in clause 1.1, referencing the title of the Agreement as ‘Adaptalift Group Enterprise Agreement (Victoria & Tasmania) 2018’, whereas the Agreement cover page, and the Form F16 Application, Form F17 Employer Declaration and Notice of employee representation rights identified the title of the Agreement as ‘Adapt-A-Lift Group Enterprise Agreement (Victoria & Tasmania) 2023’ (underlining added).

1. On 12 April 2023 I wrote to the parties noting the error and advised I intended to amend the title of the Agreement on my own initiative pursuant to s.218A of the Act. Parties were provided an opportunity provide submissions if they disagreed with this proposed course of action. No objection was received.

1. Section 218A, which came into effect on 7 December 2022, is as follows:

“218A Variation of enterprise agreements to correct or amend errors, defects or irregularities

(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; or
(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[1] of the Commission, 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. Its evident purpose 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. I am satisfied that the Agreement title in clause 1.1 of the Agreement is an obvious error. While section 218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied that amendment to the title clause should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the error is readily identified, as is the correction needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The reference to the Agreement title in Clause 1.1 of the Agreement will be amended to read ‘Adapt-A-Lift Group Enterprise Agreement (Victoria & Tasmania) 2023’, as ordered below. I have also amended the title of the Agreement in this decision to reflect the amendment made to the enterprise agreement.

Order

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

1. By deleting the reference to “Adaptalift Group Enterprise Agreement (Victoria & Tasmania) 2018” in clause 1.1 of the Agreement, and replacing it with “Adapt-A-Lift Group Enterprise Agreement (Victoria & Tasmania) 2023’.

2. The variation will operate from 17 April 2023.

DEPUTY PRESIDENT

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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