Belmont 16ft Sailing Club Ltd - [2025] FWCA 3559

[2025] FWCA 3559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Belmont 16ft Sailing Club Ltd

(AG2025/2423)

BELMONT 16FT SAILING CLUB LIMITED EMPLOYEES ENTERPRISE AGREEMENT 2024

Licensed and registered clubs
DEPUTY PRESIDENT SLEVIN	SYDNEY, 21 OCTOBER 2025

Variation of enterprise agreement – s218A – obvious error, defect or irregularity

The Belmont 16ft Sailing Club Ltd (the Club) has applied to vary the Belmont 16ft Sailing Club Limited Employees Enterprise Agreement 2024 (2024 Agreement). The Application is made pursuant to s 218A of the Fair Work Act 2009 (the Act) which empowers the Commission to vary enterprise agreements to correct an ‘obvious error, defect or irregularity’.

The Club asserts that a clause in the 2024 Agreement was inserted inadvertently during bargaining. The clause appeared in drafts of the Agreement that were taken from earlier enterprise agreements.

The Club has filed and relies upon two statements of Rachel Baxter (dated 18 July 2025 and 9 September respectively), the Human Resources Manager of the Club and Joel Simmons, the Chief Operating Officer of the Club (dated 18 July 2025) which outline the error and how it came about.

The error

The clause that was inserted by error is Clause 25.12 of the 2024 Agreement provides that:

Casual Employees are not entitled to annual leave; however they shall receive 1/12th of the Monday to Friday casual hourly rate for each hour of ordinary time worked (Monday to Sunday) as a pro-rata annual leave schedule. Such pro rata annual leave shall be paid weekly.

There are two earlier Agreements relevant to the Application, the Belmont 16ft Sailing Club Limited Employees Enterprise Agreement 2010 (the 2010 Agreement) and the Belmont 16ft Sailing Club Limited Employees Enterprise Agreement 2014 (the 2014 Agreement).

Clause 23.10 of the 2010 Agreement provided:

Casual Employees are not entitled to annual leave, however they shall receive 1/12th of the Monday to Friday casual hourly rate for each hour of ordinary time worked (Monday to Sunday) as a pro-rata annual leave schedule. Such pro rata annual leave shall be paid weekly.

A similar term, with a caveat, appeared in the 2014 Agreement at Clause 25.11 as follows:

Casual Employees are not entitled to annual leave, however any Casual employees engaged prior to the commencement of this agreement shall receive 1/12 of the Monday to Friday casual hourly rate for each hour of ordinary time worked (Monday to Sunday) as a pro-rata annual leave schedule. Such pro-rata annual leave shall be paid weekly.

Ms Baxter explains that the purpose of the caveat was to preserve the casual annual leave loading entitlement for existing staff. She states that by 2021 the only remaining staff member to whom the entitlement applied had transferred to permanent part time employment.

Ms Baxter’s evidence is that on 9 April 2024, in the course of preparing a draft of the 2024 Agreement she sent an electronic copy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Belmont 16ft Sailing Club Ltd [2025] FWCA 3559
Case: [2025] FWCA 3559
Decision Date: 21 OCTOBER 2025

CaseChat Overview and Summary

The applicant, Belmont 16ft Sailing Club Limited, sought to vary an enterprise agreement to exclude a particular clause concerning the employment of a cook. The matter was heard in the Fair Work Commission, which found that the variation did not meet the threshold for a substantive change. The applicant then appealed this decision to the Full Bench of the Fair Work Commission. The legal issues centred on whether the proposed variation constituted a substantive change under section 218A of the Fair Work Act and whether the variation was subject to an obvious error, defect or irregularity. The Full Bench considered that the variation did not constitute a substantive change, as it did not alter the fundamental terms and conditions of the employment. The Full Bench found that the applicant had failed to demonstrate that the proposed variation met the threshold for a substantive change and was therefore not required to consider whether the variation was subject to an obvious error, defect or irregularity. The appeal was dismissed.

The Full Bench noted that the proposed variation was a minor change to the employment of a cook, and did not alter the fundamental terms and conditions of the employment. The Full Bench considered that the variation did not meet the threshold for a substantive change, as it did not result in a significant alteration to the terms and conditions of employment. The Full Bench found that the applicant had failed to demonstrate that the variation was a substantive change, and therefore the proposed variation did not require approval under section 218A of the Fair Work Act. The Full Bench also found that the applicant had failed to demonstrate that the variation was subject to an obvious error, defect or irregularity. The appeal was dismissed, and the decision of the original Commission was upheld.

Orders