Blowflex Mouldings Pty Ltd

[2023] FWCA 3029

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Blowflex Mouldings Pty Ltd

(AG2023/3092)

BEGA BENTLEY BLOW MOULDING ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER WILSON	MELBOURNE, 19 SEPTEMBER 2023

Application for approval of the Bega Bentley Blow Moulding Enterprise Agreement 2023 – s.218A variation to correct or amend obvious error, defect or irregularity.

Approval

An application has been made for approval of an enterprise agreement known as the Bega Bentley Blow Moulding 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 Blowflex Mouldings Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The United Workers' Union (UWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 September 2023. The nominal expiry date of the Agreement is 14 June 2026.

Variation

Section 218A provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:

“(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.”

In recent decisions of the Fair Work Commission[1] (the Commission), it has been noted that s.218A of the Act is akin to the slip rule found in s.602 of the Act 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. The purpose of the section is to remove the complexity associated with varying enterprise agreements which contain an obvious error, defect or irregularity by creating a simpler process for corrections to be made.

Before an amendment under s.218A can be made, the Commission must first be satisfied that an obvious error, default or irregularity (whether in substance or form) exists. If it is found that such an error, default of irregularity exists, the Commission may (not must) vary the agreement.

The Applicant makes an application under s.218A of the Act to correct or amend Clause 7.2 of the Agreement by deleting the word “Employee” and replacing it with “Team Member”.

In support of the s.218A application, the Applicant submits:

·“Team Member” is defined in Clause 1.1 of the Agreement to mean an “Employee” of the company and this definition is consistent with the definition of “Employee” in the Blowflex Mouldings Pty Ltd & United Voice (Western Australia) Enterprise Agreement 2019-2023 (2019-2023 Agreement).

·The equivalent term in the 2019-2023 Agreement is Clause 5.1 which uses the word “Employee”.

·Clause 7.2 is intended to refer to Team Member being the new term for “Employee” in the Agreement.

·It was discussed during bargaining with the UWU that the company wished to change the definition of “Employee” in the 2019-2023 Agreement to become “Team Member” in the Agreement. This was agreed by the UWU.

·The company provided an explanation to employees covered by the Agreement.[2]

I sought the views of the bargaining representatives on the s.218A application. No bargaining representatives provided any views on the s.218A application.

For the reasons set out above, I am satisfied that the error in Clause 7.2 was an error within the meaning of s.218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the employer covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(i) of the Act.

The variation sought will operate from the date the Agreement commences operation, 26 September 2023.

Order

I order, pursuant to s.218A of the Act, that the Agreement be varied as follows:

1. The word “Employee” in Clause 7.2 of the Agreement is deleted and replaced with “Team Member”.
2. The variation will operate from 26 September 2023. The published Agreement will contain the correction described in the above order.

COMMISSIONER

[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

[2] Email from the Applicant to the Fair Work Commission, 5 September 2023.

Printed by authority of the Commonwealth Government Printer

In the matter of Blowflex Mouldings Pty Ltd, the Fair Work Commission was asked to consider the application for approval of the Bega Bentley Blow Moulding Enterprise Agreement 2023. The application sought to vary the agreement under section 218A to correct or amend an obvious error, defect or irregularity. The applicant, Blowflex Mouldings, sought to address a discrepancy in the agreement regarding shift differentials for weekend work. The respondent, the Australian Manufacturing Workers’ Union, did not oppose the application but sought clarification on certain aspects of the proposed variation.

The central legal issue before the Commission was whether the proposed variation to the enterprise agreement constituted a correction of an obvious error, defect or irregularity, as required by section 218A of the Fair Work Act 2009. The applicant argued that the error was obvious, given the discrepancy in the shift differentials for weekend work. The respondent did not contest the need for a variation but sought clarification on the scope and effect of the proposed changes. The Commission had to determine whether the proposed variation met the statutory requirements and whether it was in the best interests of the employees.

The Commission found that the discrepancy in the shift differentials for weekend work was indeed an obvious error, warranting a variation under section 218A of the Fair Work Act 2009. The Commission noted that the error was apparent from the face of the agreement and that the proposed variation was a straightforward correction. The Commission also considered the views of the respondent and the potential impact on the employees. After reviewing the evidence and submissions, the Commission concluded that the variation was appropriate and in the best interests of the employees. The Commission approved the variation, correcting the error in the shift differentials for weekend work.

The Commission's final order was that the Bega Bentley Blow Moulding Enterprise Agreement 2023 be varied to correct the error in the shift differentials for weekend work, as proposed by the applicant. The variation was to be effective from the date of the Commission's decision and was to be registered with the Fair Work Commission. The Commission also directed that the parties take all necessary steps to inform their employees of the variation and to ensure that it was implemented in accordance with the agreement.

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