Airservices Australia
[2024] FWCA 2621
•15 JULY 2024
| [2024] FWCA 2621 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Airservices Australia
(AG2024/2143; AG2024/2159)
AIRSERVICES AUSTRALIA (AVIATION RESCUE AND FIRE FIGHTING) ENTERPRISE AGREEMENT 2024-2027
| Commonwealth employment | |
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 15 JULY 2024 |
Application for approval of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2024-2027
An application has been made for approval of an enterprise agreement known as the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2024-2027 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.
I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act as are relevant to this application for approval have been met.
The Agreement is approved and, in accordance with section 54 of the Act, will operate from 22 July 2024. The nominal expiry date of the Agreement is 21 February 2027.
The United Firefighters’ Union of Australia, being a bargaining representative for the Agreement, has given notice to the Fair Work Commission that it wants the Agreement to cover it. In accordance with s 201(2) of the Act, I note that the Agreement covers the United Firefighters’ Union of Australia.
Variation application
An application was also made pursuant to s 218A of the Act to vary the Agreement to correct or amend an obvious error, defect or irregularity in the Agreement.
The Applicant submits that the Agreement contains an obvious error, defect or irregularity, the details of which are set out and considered below. The employees covered by the Agreement were given a chance to be heard in relation to the proposed variations to the Agreement but did not provide any comments or concerns. The United Firefighters’ Union of Australia – Aviation Branch, a bargaining representative for the Agreement, indicated that they agree with the Applicant’s application to vary the Agreement.
Statutory Provisions
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 an enterprise agreement 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.”
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.”
Consideration
Prior to submitting the Agreement to the Commission for approval, the Applicant became aware of four errors, defects or irregularities.
The Applicant seeks to vary clause 11.1(e)(vi) of the Agreement, which refers to “clause 0”, by replacing the current clause with the following:
“(vi) If the redundancy provisions apply to an employee under clause 11.1(e)(v),
Airservices must adhere to the consultation requirements at clause 15.”
The Applicant seeks to vary clause 22.9 of the Agreement, which refers to emergency duty, by replacing the current clause with the following:
“Emergency duty is overtime that is not continuous with ordinary hours, and the employee receives less than 48 hours’ notice. For the avoidance of doubt, if an employee receives less than 48 hours’ notice to work overtime that is continuous with ordinary hours, whether the notice is provided on the same day or a different day, then this is not emergency duty.”
The Applicant seeks to vary clause 26.3 of the Agreement, which refers to classification rank of Station Officers and Fire Commanders, by replacing the current clause with the following:
“Where an employee held the classification of Station Officer (SO) or Fire Commander (FC) during FIFO employment, and the classification was held for continuous period equal to or greater than 5 years, when the employee returns to the location the employee worked at before they commenced FIFO (or any other location), the SO or FC rank and salary will be maintained regardless of their substantive classification at that location.”
The Applicant seeks to vary, commencing on page 3 of the Agreement, every second page of the Agreement, which contains a “Draft” watermark, by removing the “Draft” watermark.
The Applicant submits that there is an obvious error at clause 11.1(e)(vi) of the Agreement, in that the parties did not intend for clause 11.1(e)(vi) to refer to “clause 0” as the Agreement does not include a clause 0. The Applicant further submits that clause 15 of the Agreement deals with consultation, that it is the only clause of the Agreement with the subject matter of consultation, and that it is clear on the face of the Agreement that this is the intended reference to be included in clause 11.1(e)(vi). The Applicant submits that the reference to “clause 0” is an obvious drafting error as contemplated by s 218A of the Act.
The Applicant submits that there is a further obvious error at clause 22.9 of the Agreement, in that it is clear on the face of the Agreement that the word “is” is missing from the sentence in clause 22.9, and the inclusion of the word is necessary to make clause 22.9 read properly. The Applicant submits that the missing word is an obvious drafting error as contemplated by s 218A of the Act.
The Applicant submits that there is a further obvious error at clause 26.3 of the Agreement, in that the inclusion of the parenthetical text “(or any other location)” is necessary to make it clear that whether the employee returns to their home location, or any other location, they will maintain the relevant classification. The Applicant further submits that this change addresses obvious ambiguity in the clause and more clearly reflects the intent of the parties in negotiating the terms of the Agreement, and that there are no possible circumstances in which the inclusion of the parenthetical text would be to the detriment of employees who are covered by the Agreement. The Applicant submits that the missing parenthetical text is an obvious drafting error as contemplated by s 218A of the Act.
The Applicant submits that there is a further obvious error, commencing on page 3 and at every second page thereafter, in that the Agreement contains a “Draft” watermark on every second page. The Applicant submits that it is clear on the face of the Agreement that the Agreement is not a draft. The Applicant submits that the “Draft” watermark throughout the Agreement is an obvious drafting error as contemplated by s 218A of the Act.
As Deputy President Masson sets out in Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026 [2022] FWCA 4390:
“[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[1] (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.”
In the present case the contended errors at clause 11.1(e)(vi), clause 22.9, clause 26.3 and the “Draft” watermark commencing at page 3 of the Agreement and appearing on every second page thereafter are drafting errors. The errors were not identified until after the voting process was completed and are clearly errors of substance and omission.
I am satisfied that the reference to “clause 0” in clause 11.1(e)(vi), the missing word at clause 22.9, the missing parenthetical text at clause 26.3 and the “Draft” watermark are obvious errors that fall within the scope of s 218A(1).
Conclusion
For the reasons set out above, I am satisfied that the errors above are obvious 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 an employer covered by the Agreement, thus satisfying the requirements of s 218A(2)(b)(i) of the Act. The variation sought will operate from 22 July 2024. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
[1] [2021] FWCFB 453.
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