Aldus Pty Ltd T/A Tronics (A Division of Aldus Pty Limited)
[2023] FWCA 2785
•30 AUGUST 2023
| [2023] FWCA 2785 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Aldus Pty Ltd T/A Tronics (A Division of Aldus Pty Limited)
(AG2023/2752)
TRONICS COLLECTIVE BARGAINING WORKSHOP AGREEMENT 2023
| Manufacturing and associated industries | |
| COMMISSIONER CONNOLLY | MELBOURNE, 30 AUGUST 2023 |
Application for approval of the Tronics Collective Bargaining Workshop Agreement 2023 – s.218A variation to correct or amend obvious error.
Approval
An application has been made for approval of an enterprise agreement known as the Tronics Collective Bargaining Workshop Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Aldus Pty Ltd T/A Tronics (A Division of Aldus Pty Limited) (the Applicant). The Agreement is a single enterprise agreement.
The matter was allocated to my Chambers on 17 August 2023.
The notification time for the Agreement under s.173(2) was 27 April 2023 and the Agreement was made on 3 August 2023. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]
The Agreement title in the Notice of Employee Representational Rights (NERR) distributed to the employees, the Form F17 filed by the Applicant and the Agreement title in Clause 1 of the Agreement lodged all state different versions of the title of the Agreement.
On 21 August 2023, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.
On 25 August 2023, the Applicant submitted that the correct name of the Agreement is the one outlined in the Form F17, which stated ‘Tronics Collective Bargaining Workshop Agreement 2023”. Considering this submission, I do not believe that this error in the NERR had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the technical error is minor and the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement. Accordingly, the variation of the title has been detailed below.
The Applicant has provided written undertakings, dated 29 August 2023, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.
I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.
I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.
Variation
As briefly mentioned above, the Agreement lodged contained an error in Clause 1 and in the NERR, referencing the title of the Agreement as ‘Tronics (a division of Aldus Pty Limited) Collective Bargaining Workshop Agreement 2023’, whereas the heading of the Agreement and the Form F17 Employer Declaration identified the title of the Agreement as ‘Tronics Collective Bargaining Workshop Agreement 2023’.
On 28 August 2023, my Chambers wrote to the parties noting the error and advised that I intended to vary the title of the Agreement on my own initiative pursuant to s.218A of the Act. Parties were provided an opportunity to provide submissions if they disagreed with this proposed course of action. No objection was received.
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.”
As has been noted in recent decisions of the Commission,[2] s.218A of the Act is not unlike 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.
Before an amendment under s.218A can be made, the Commission must first be satisfied 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.
I am satisfied that the existence of an error in Clause 1 of the Agreement referring to the title 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 the 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 of the Agreement will be amended to read ‘Tronics Collective Bargaining Workshop Agreement 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
I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error as follows:
By deleting the reference to ‘Tronics (a division of Aldus Pty Limited) Collective Bargaining Workshop Agreement 2023’ in Clause 1 of the Agreement, and replacing it with ‘Tronics Collective Bargaining Workshop Agreement 2023’.
The variation will operate from 30 August 2023.
COMMISSIONER
Annexure A
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
[2] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury
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