Anglo Coal (Grosvenor Management) Pty Ltd
[2023] FWCA 520
•20 FEBRUARY 2023
| [2023] FWCA 520 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - Application to vary an agreement to correct or amend errors, defects or irregularities
Anglo Coal (Grosvenor Management) Pty Ltd
(AG2023/226)
Grosvenor Mine Enterprise Agreement 2022
| Coal industry | |
| COMMISSIONER HUNT | BRISBANE, 20 FEBRUARY 2023 |
Application for variation of the Grosvenor Mine Enterprise Agreement 2022
Anglo Coal (Grosvenor Management) Pty Ltd (the Employer) has made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the Grosvenor Mine Enterprise Agreement 2022 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Commission on 30 November 2022 and commenced operation on 7 December 2022.[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is an employee organisation covered by the Agreement.
The Employer submitted that the Agreement contains an obvious error in Attachment 3, where the table which sets out the amounts payable to Mine Technicians from commencement of the Agreement was inadvertently omitted when lodged with the Commission (Mine Technicians – Commencement Table). The Employer advised that the version of the Agreement in which the Mine Technicians – Commencement Table is included is the version voted on by employees during the access period. Therefore, the Employer contended that if the omission of the Mine Technicians – Commencement Table is not rectified, the balloted version of the Agreement agreed on by employees is different to the Agreement which was approved by the Commission.
The Employer further asserted that if the omission was not rectified, this will lead to confusion for employees as relevant employees will not be able to readily identify from the Agreement the total remuneration payable to them on commencement of the Agreement.
The CFMMEU did not object to the application.
Relevant Legislation
Section 218A came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. It provides 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;
(iii) an employee organisation covered by the agreement.”
Consideration
The Employer seeks to vary Attachment 3, immediately under the heading “FROM COMMENCEMENT”, by inserting the following table:
As stated, the Employer submitted that when preparing the Agreement for approval, there was an error in the version that was lodged with the Commission. The Employer therefore submitted that the Agreement contains a demonstrated error of omission as contemplated by s.218A of the Act.
In the recent decision of Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026,[2] Deputy President Masson observed as follows:
“[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 (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.201 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.” (footnotes omitted)
In the present case, the contended error is that of omitting to include the table providing amounts payable to certain employees covered by the Agreement. The contended error which was not identified until after the Agreement was approved is arguably an error of substance and omission. A demonstrated error of omission would, in my view, fall within the scope of s.218A(1).
Having regard to the above, and that the balloted version of the Agreement contained the missing table, I am satisfied that the error in omitting the Mine Technicians – Commencement Table was an error that arose during the lodgement of the s.185 application.
Conclusion
For the reasons set out above, I am satisfied that the error contained in Attachment 3 is an error 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 the Employer covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(i) of the Act. The variation sought will operate from 7 December 2022. An order giving effect to this decision will be separately issued.
COMMISSIONER
[1] [2022] FWCA 4199.
[2] [2022] FWCA 4390.
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