BOC Limited
[2023] FWCA 1655
•8 JUNE 2023
| [2023] FWCA 1655 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - Application to vary an agreement to correct or amend errors, defects or irregularities
BOC Limited
(AG2023/1633)
BOC LIMITED MELBOURNE OPERATIONS CENTRE COLLECTIVE AGREEMENT 2022
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 8 JUNE 2023 |
Application for variation of the BOC Limited Melbourne Operations Centre Collective Agreement 2022
BOC Limited (the Applicant) has applied pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the BOC Limited Melbourne Operations Centre Collective Agreement 2022 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Commission on 25 May 2023 and commenced operation on 1 June 2023. The Applicant is the sole employer covered by the Agreement. The United Workers’ Union (UWU) and Australian Workers’ Union (AWU) are also covered by the Agreement.
The Applicant seeks to vary the Agreement by replacing the current Appendix A with an amended version of Appendix A, the effect of which varies the date of “1 January 2023” at clauses 2.2.1 and 2.2.2 to “1 April 2023” (Amended Appendix A).
Consideration
Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:
“(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.”
Further, the Explanatory Memorandum in support of the Bill provides as follows:
“772. This part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:
· simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and
· provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.”
As Deputy President Masson observed in Application by Victorian Hospitals’ Industrial Association:[1]
“[9] It is apparent from the text of s. 218A and the supporting Explanatory Memorandum that s. 218A is intended to overcome the statutory limitation imposed by s.602 of the Act that was most recently identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union (Advantaged Care). In that decision the Full Bench confirmed that the Commission could not amend the text of an agreement to correct an obvious error, defect or irregularity pursuant to s. 602 of the Act and that other provisions within the Act, such as ss. 210 or 217, might be used to rectify such error, defect or irregularity.
[10] There are limitations to the use of ss. 210 and 217 of the Act in varying an agreement to address an obvious error, defect or irregularity. For example, it may be considered costly and impractical to conduct a ballot of employees for the purpose of obtaining approval for the variation of an agreement pursuant to s. 210 of the Act, where the variation sought is not substantive. Section 217 might also not be amenable to correcting an obvious error, defect or irregularity where the error does not create uncertainty or ambiguity. It is accepted that s. 218A confers an additional discretion for the Commission to amend an error, defect, or irregularity in an agreement, be that in form or substance.”
The Applicant submits that the version of the Agreement which was signed, filed and approved by the Commission was not the version that was voted on by employees. A Statutory Declaration on behalf of Mr Stephen Shield, Operations Manager, dated 26 May 2023, has been filed in support of the application. Mr Shield states that he was responsible for bargaining for the Agreement on behalf of the Applicant and that there had been an unsuccessful vote for an earlier version of the Agreement. On 21 April 2023 Mr Shield emailed a notification of the proposed second vote to employees covered by the Agreement, together with the revised terms of the proposed agreement (the Email) and Amended Appendix A. This version of the Agreement, which provided for the first pay increase to take effect from 1 April 2023, was approved by employees. After the Agreement was approved by the Commission, Mr Shield noticed that the date of the first pay increase was 1 January 2023 and not 1 April 2023 and that he has incorrectly submitted an earlier version of Appendix A.
UWU and AWU Views
On 30 May 2023, my chambers contacted the relevant representatives from UWU and AWU to seek their views (if any) in relation to the application. The UWU advised that they had no objection on the basis that the only variation sought was the change in dates as set out in the application. The AWU did not provide a response.
Conclusion
I accept that the date of 1 January 2023 in clauses 2.2.1 and 2.2.2 of Appendix A of the Agreement was an inadvertent error, and that the Agreement with Amended Appendix A is the agreement voted on and approved by employees.
The error is one of substance, it occurred during the drafting process and was not identified until after the Agreement was approved. In my view, these are the type of errors contemplated by s.218A of the Act.
For the reasons set out above, I am satisfied that the errors contained in Appendix A are obvious errors within the meaning of s.218A of the Act. In accordance with s.218A(3), the variation will operate from 1 June 2023. An order to that effect will be issued separately.
DEPUTY PRESIDENT
[1] [2022] FWCA 4390 at [9]-[10]
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