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

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.

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

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.”

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]

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

The errors…

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

Case: [2023] FWCA 115
Decision Date: 13 JANUARY 2023

CaseChat Overview and Summary

BHP Coal Pty Ltd applied to the Fair Work Commission for approval of the BMA Enterprise Agreement 2022. The company sought to vary the agreement to correct or amend errors, defects, or irregularities under section 218A of the Fair Work Act 2009. The application followed the submission of the enterprise agreement for approval, and the union representing the employees, the Building and Construction General Employees' and Builders' Labourers' Federation, did not oppose the application. The union acknowledged that the proposed changes were necessary to rectify identified issues within the agreement.

The central legal issue before the Commission was whether the proposed amendments to the enterprise agreement were procedurally and substantively valid. The Commission had to determine if the proposed changes were within the scope of what is permissible under section 218A of the Act, which allows for the correction of errors, defects, or irregularities in an approved enterprise agreement. Additionally, the Commission needed to assess whether the amendments would adversely affect the employees' rights and interests. Given that the union did not oppose the application, the focus was on whether the changes aligned with the legislative intent and whether they could be approved without further negotiation or consultation.

The Fair Work Commission found that the proposed amendments were procedurally valid as they were in response to a s. 218A application, which is an appropriate mechanism for correcting errors in an approved enterprise agreement. The Commission also determined that the substantive changes did not adversely affect the employees' rights and interests. It was satisfied that the amendments were necessary to correct errors and ensure the agreement's effectiveness. Consequently, the Commission approved the application, allowing the enterprise agreement to be varied to correct the identified errors, defects, or irregularities.

The final orders of the Fair Work Commission included the approval of the proposed amendments to the BMA Enterprise Agreement 2022. These amendments were intended to correct the errors, defects, or irregularities identified in the agreement. The Commission's decision was based on the procedural and substantive validity of the proposed changes, as well as the absence of opposition from the union representing the employees. The approved agreement now accurately reflects the intended terms and conditions of employment for the employees covered by the enterprise agreement.

Orders