Australian Tungsten Pty Ltd

[2023] FWCA 1175

[2023] FWCA 1175

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Tungsten Pty Ltd

(AG2023/586)

AUSTRALIAN TUNGSTEN PTY LTD ENTERPRISE AGREEMENT 2023

Mining industry
COMMISSIONER LEE	MELBOURNE, 26 APRIL 2023

Application for approval of the Australian Tungsten Pty Ltd Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Australian Tungsten Pty Ltd Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Tungsten 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. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 May 2023. The nominal expiry date of the Agreement is 26 April 2025.

Variation

1. During the process of seeking approval of the Agreement, an error was identified in Appendix 1 of the Agreement which states:

“For employees who would otherwise, but for the operation of this Agreement, be covered by one of the following modern awards

·   Building and Construction General On-site Award 2020

·   Mining Industry Award 2020

·   Miscellaneous Award 2020”

However, the Miscellaneous Award 2020 does not apply to this Agreement.

1. This issue was raised with the Applicant and on 28 March 2023, in response, the Applicant stated “ATPL has reviewed this and seek leave to withdraw reference to the Miscellaneous award”.

1. Section 218A of the Act came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is as follows:

“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.

(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. Considering s.218A(2)(a) of the Act, the Fair Work Commission may vary an enterprise agreement on its own initiative. The error should be corrected by varying the Agreement to remove the reference to the Miscellaneous Award 2020 from Appendix 1. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement and correct the error.

Order

1. I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error by removing the reference to the Miscellaneous Award 2020 from Appendix 1. Appendix 1 of the Agreement will be read as:

“For employees who would otherwise, but for the operation of this Agreement, be covered by one of the following modern awards

·   Building and Construction General On-site Award 2020

·   Mining Industry Award 2020”

1. The variation will operate from 3 May 2023.

COMMISSIONER

Annexure A

[1] PR761392

Printed by authority of the Commonwealth Government Printer

<AE519824  PR761361>