BOC Limited

[2023] FWCA 1334

[2023] FWCA 1334

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

(AG2023/1190)

BOC LIMITED (ROCKLEA OPERATIONS) ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
COMMISSIONER SIMPSON	BRISBANE, 10 MAY 2023

Application for variation of the BOC Limited (Rocklea Operations) Enterprise Agreement 2022

1. BOC Limited (the Applicant) made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the BOC Limited (Rocklea Operations) Enterprise Agreement 2022 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by the Commission on 15 August 2022 and commenced operation on 22 August 2022.

1. The Applicant seeks an order that the Agreement is varied as follows:

1.   clause 11.2.4 is deleted and replaced with “The hourly rate for each classification will be calculated by dividing the applicable annual rate of pay by 2340.”; and

2.   the sentence after the heading “HOURLY RATE” in Appendix B of the Agreement is deleted and replaced with “The hourly rate for each classification will be calculated by dividing the applicable annual rate of pay by 2340.”

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative and an employee organisation covered by the Agreement, had no objection to the 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.”

Conclusion

1. I am satisfied that the errors as outlined in [3] above, are errors within the meaning of s.218A 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 will operate from the date the Agreement commenced, being 22 August 2022. An order giving effect to this decision will be separately issued.

COMMISSIONER

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