Birdon Pty Ltd
[2024] FWCA 2490
•4 JULY 2024
| [2024] FWCA 2490 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Birdon Pty Ltd
(AG2024/1559)
BIRDON MARINE ENTERPRISE AGREEMENT 2022
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 4 JULY 2024 |
Application for variation of the Birdon Marine Enterprise Agreement 2022
Birdon Pty Ltd has made an application under s.218A of the Fair Work ACT 2009 (the Act) to vary the Birdon Marine Enterprise Agreement 2022 (the Agreement) to correct an error. The error is said to be the dates appearing in clause 5 of the Agreement.
Clause 5 of the Agreement deals with the operative date and period of the Agreement. It reads:
“This Agreement shall commence its operation on 1 December 2022 and remain in force until its expiry on 30 November 2024. In accordance with the provisions of the Fair Work Act 2009 the Agreement will remain in operation after its formal expiry on 30 November 2024 until it is either terminated by an order of the Fair Work Commission or replaced by another Agreement made between the parties.”
The application seeks a variation of clause 5 to replace the date 30 November 2024 with 30 November 2025. The applicant contends that it was the clear intention of the parties to make a three year agreement that expired on 30 November 2025. It contends that the reference to the year 2024 in clause 5 arose from an obvious typographical error.
Background
The Agreement approved on 28 April 2023 and came into operation on 5 May 2023. During bargaining the negotiations were conducted by Martin Minogue, Manager of People and Culture of Birdon Pty Ltd and a negotiating committee elected by the employees. The Committee leaders were Dan Roelandts and Brady Pinkstone. According to an Affidavit provided in support of this application by Mr Minogue, negotiations commenced in late 2022 and concluded on 28 March 2023 when a deal was voted up by 33 employees of the 40 member workforce. 7 employees voted against the deal.
The typographical error is established by documents exchanged during the bargaining. Employees were provided with explanatory notes during the access period prior to the ballot being conducted. The explanatory notes referred to the Agreement as remaining in force for a period of 3 years. The proposed agreement that was voted upon however contained the date 30 November 2024 as the nominal expiry date at clause 5. The error was identified by the parties after the Agreement had already been approved.
The applicant contends that if the date of 30 November 2024 would remain in the Agreement then it would be essentially a two year deal which is not what was negotiated and agreed.
Employee bargaining representatives’ views to the variation were also sought. There were two bargaining committee leaders. One indicated support for the application while no response was received from the other Committee leader.
Consideration
Section 218A of the Act provides:
“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 of the Act is akin to the slip rule found in s 602 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. Section 218A was inserted by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022(Cth) (AmendmentAct), which received royal assent on 6 December 2022 and commenced in part the following day. Part 17 of Schedule 1 of the Amendment Act commenced on 7 December 2022. Section 218A of the Act commenced on that day. Its evident purpose 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.
I find that there is an error which is obvious having regard to the extrinsic material, being the updates and documents exchanged during the bargaining.
Having found that there is an error, as described, I have decided to exercise my discretion to correct the error. The reason for exercising the discretion is to give effect to the substantive agreement between the bargaining representatives, which was communicated to employees in the explanatory material circulated prior to the ballot. It is clear from the extrinsic material that the date 30 November 2024 was a typographical error and that the nominal expiry date at clause 5 should be read as 30 November 2025.
Order
Pursuant to s 218A of the Act, I order that the Agreement be varied to correct an obvious error so that the dates which appear twice at clause 5 “30 November 2024” is replaced by “30 November 2025”. The variation shall operate from 4 July 2024.
DEPUTY PRESIDENT
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