Australian National Hotels Pty Ltd

[2023] FWCA 1411

[2023] FWCA 1411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian National Hotels Pty Ltd

(AG2023/1179)

WREST POINT HOTEL CASINO ENTERPRISE AGREEMENT 2023

Hospitality industry
DEPUTY PRESIDENT BELL	MELBOURNE, 17 MAY 2023

Application for approval of the Wrest Point Hotel Casino Enterprise Agreement 2023 - s.218A variation to correct or amend obvious errors.

Approval

1. An application has been made for approval of an enterprise agreement known as the Wrest Point Hotel Casino Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer, Australian National Hotels 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 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. The employer did not notify employees of the time, place and method of voting seven clear days before the commencement of the voting process. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

1. The United Workers’ Union (UWU), 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) I note that the Agreement covers the organisation.

1. The Agreement was approved on 17 May 2023 and, in accordance with s.54 of the Act, will operate from 24 May 2023. The nominal expiry date of the Agreement is 31 December 2023.

Variation

1. The Agreement lodged appeared to contain several cross-referencing errors. On 8 May 2023, I wrote to the parties identifying some of the apparent errors and invited them to make an application pursuant to s.218A of the Act to correct them.

1. An application pursuant to s.218A was subsequently made identifying various cross-referencing errors sought to be corrected by the parties.

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. The evident purpose of s.218A 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 the cross-referencing errors in the Agreement, as confirmed by the parties, are obvious errors. While s.218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied the amendments 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 errors are readily identified, as are the corrections 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 cross-referencing errors will be amended as per the order below.

Order

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

1. By deleting “14.10(d)” where it appears in clauses 14.5(b), 23.5(b) and 28.4(b) and replacing it with “14.6(d)”.

2. By deleting “14.10” where it appears in clause 9.4(e) and replacing it with “14.6”.

3. By deleting “14.11” where it appears in clauses 9.1(b), 14.7(a), 14.7(b), 14.7(f) and 16.3(a) and replacing it with “ 14.7”.

4. By deleting “14.6” where it appears in clauses 14.5(e) and 31.2 and replacing it with “14.5”.

5. By deleting “16.6” where it appears in clause 16.3(b) and replacing it with “16.5”.

1. The variation will operate from 17 May 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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