BHP Coal Pty Ltd

[2023] FWCA 115

[2023] FWCA 115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BHP Coal Pty Ltd

(AG2023/31)

BMA ENTERPRISE AGREEMENT 2022

Coal Industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 13 JANUARY 2023

Application for approval of the BMA Enterprise Agreement 2022 – s. 218A application to vary the enterprise agreement to correct or amend errors, defects or irregularities

Overview

1. BHP Coal Pty Ltd (the Applicant / Employer) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the BMA Enterprise Agreement 2022 (the Agreement). The application was made on 4 January 2023 pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. During the process of seeking approval of the Agreement, two errors were identified in the Agreement by the Applicant.  The Applicant made an application pursuant to s. 218A of the Act to vary the Agreement for the purpose of amending the errors. A hearing was held on 12 January 2023 to deal with the approval application and the variation application.  The organisations of employees covered by the Agreement, which were bargaining representatives for the Agreement, agree to the amendments.  I deal first with the variation application.

Section 218A Application

1. Section 218A 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.

(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. Section 218A is a new provision in the FW Act enacted by virtue of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The terms of s. 218A are substantially similar to those in s. 602 of the Act and the Explanatory Memorandum to the Bill states that s. 218A is intended fill a regulatory gap by extending the operation of the “slip rule” to correct or amend obvious errors, defects or irregularities, whether in substance or form, in enterprise agreements.   The provision addresses a regulatory gap, as the existing “slip rule” in section 602 enables the FWC’s decisions, but not enterprise agreements, to be corrected.[1]

1. Accordingly, the principles that apply to s. 602 of the Act are analogous in the context of s. 218A of the Act and that the section confers a discretion on the Commission to correct or amend “unintentional errors, mistakes arising from inadvertence, clerical mistakes or errors arising from accidental slips or omissions”[2] that have arisen in an enterprise agreement.  

Amendments sought

1. The errors identified by the Applicant are said to relate to the following provisions in the Agreement:   

(a)       Salaries rate for roster 7MM 12.25 (7DR DN12.25 Mech) Saraji Maintenance Employees (mechanical roster) in Clause 21 of Schedule 8

Roster Type	Description	Year 1		Year 2		Year 3
Weekly	Annually	Weekly	Annually	Weekly	Annually
7MM 12.25	7DR D/N 12.25 Mech	3,066.09	$159,436.16	$3,188.73	$165,813.61	$3,316.28	$172,446.15

(b)       The word “employees” was not capitalised as “Employees” in Clause 15.1(2)(c) as shown below:

“15 Consultation on major workplace change

…
Major change

(2)  For a major change referred to in paragraph (1)(a):

(a) the employer must notify the relevant employees of the decision to introduce the major change; and

(b) subclauses (3) to (9) apply; and

(c) if the major change is a definite decision to introduce autonomous mining equipment, consultation includes the steps in subclause 15.3. In this clause “autonomous mining equipment” means any change to mobile mining equipment that substitutes employees with an autonomous system. (emphasis added)

…”

1. The amendments sought by the Applicant are set out as follows:

(a)       Revising the salaries rate for roster 7MM 12.25 (7DR DN12.25 Mech) Saraji Maintenance Employees (mechanical roster) in Clause 21 of Schedule 8 as follows:

Roster Type	Description	Year 1		Year 2		Year 3
Weekly	Annually	Weekly	Annually	Weekly	Annually
7MM 12.25	7DR D/N 12.25 Mech	$3.069.21	$159,598.40	$3,191.97	$165,982.34	$3,319.65	$172,621.63

(b)       Deleting the word “employees” and inserting the word “Employees” in clause 15.1(2)(c) of the Agreement.

1. With respect to the errors, the Applicant stated that the rates for the Saraji Maintenance Employees (mechanical roster) in roster 7MM 12.25 (7DR DN12.25 Mech) included a mathematical error in the calculation for the new Agreement and the new rates should have been higher than in the existing draft of the Agreement. The other change is said to be a typographical error which was discovered by the parties after the commencement of the access period.  The Unions covered by the Agreement accept that the provisions subject of the variation application contain errors and agree with the variation application.

1. I accept that the variations sought by the Applicant are to correct errors of the kind that are intended to be dealt with by s. 218A and that they are unintentional and inadvertent arising from accidental slips or omissions. Pursuant to s. 218A of the Act, I grant the application to vary the Agreement in accordance with the amendments sought by the Applicant. An order to that effect will issue simultaneously with this Decision varying the Agreement from the date it is approved.[3]

Application for approval of the Agreement

1. In relation to the application for approval of the Agreement, I observe that the following clauses of the Agreement may be inconsistent with the National Employment Standards (NES):

·   Clauses 21.5 – Public holidays;

·   Clause 22.13 – Deduction of monies due to the employee under the NES on termination; and

·   Clause 32.8 – Redundancy

1. I note, however, that Clause 1.9 of the Agreement provides that, where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provisions will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s .56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

1. I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer declarations in support of an application for approval of the Agreement and oral submissions made at a hearing on 12 January 2023, that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the Applicant, however, considering s. 186(3) and (3A), and based on the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

1. The Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division (MEU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU), being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s. 201(2) of the Act, I note that the Agreement covers these organisations.

1. The Agreement is approved in accordance with s. 54 of the Act and will operate from 19 January 2023 for a period of three years.

DEPUTY PRESIDENT

[1] Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022.

[2] Snyder v Helena College Council Inc T/A Helena College[2019] FWCFB 8340 at [8].

[3] PR749624.

Printed by authority of the Commonwealth Government Printer

<AE518866  PR749623>