Boral Resources (NSW) Pty Ltd T/A Boral, Boral Resources (Country) Pty. Limited T/A Boral
[2024] FWCA 510
•5 FEBRUARY 2024
| [2024] FWCA 510 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Boral Resources (NSW) Pty Ltd T/A Boral, Boral Resources (Country) Pty. Limited T/A Boral
(AG2024/112)
BORAL NSW & ACT COUNTRY QUARRY OPERATORS ENTERPRISE AGREEMENT 2023
| Quarrying industry | |
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 5 FEBRUARY 2024 |
Application for variation of the Boral NSW & ACT Country Quarry Operators Enterprise Agreement 2023
An application has been made for the variation of the Boral NSW & ACT Country Quarry Operators Enterprise Agreement 2023 (the Agreement). The Application was made by Boral Resources (NSW) Pty Ltd T/A Boral, Boral Resources (Country) Pty. Limited t/a Boral (the Applicants). The Applicants requested the Commission to exercise its powers under s.218A of the Fair Work Act 2009 (Cth)(the Act) to vary the Agreement to correct or amend an obvious error in clause 28 of the Agreement and to validate the relevant approval decision pursuant to s.602A of the Act.
The application sought a variation in Clause 28 (Minimum Wage Rates) of the Agreement which contains a table showing the minimum weekly wage rates for full-time employees. The pay rates set out in the table are to be increased by 3.5% on 1 October each year from 2023 to 2026, however owing to a typographical error, the last wage rate increase is stated to occur ‘…. on or after 1 October 2025,’ instead of ‘…. on or after 1 October 2026.’ The application sought to vary the Agreement to state that the last wage rate increase will take effect ‘…. on or after 1 October 2026.’
It was put that the text sought to be removed from the Agreement and replaced by the variation was obvious error. The correction or amendment was sought to ensure the Agreement accurately reflects the terms negotiated during bargaining and to otherwise remove any confusion owing to the error.
The views of the Australian Workers’ Union (AWU) were sought in relation to the proposed amendments. The AWU was a bargaining representative for the Agreement. The AWU had no objection to the proposed amendment. I note the correction is consistent with an in-principle agreement reached between the AWU and Boral Resources (Country) Pty Ltd during the course of a conference before the Commission in a matter under s.240 of the Act. The corrected text is embodied in a recommendation of Commissioner McKinnon dated 23 October 2023 in that matter.
I am satisfied that the proposed variation deals with obvious an error in the Agreement. The making of the variation will remove that obvious error.
It is appropriate in the circumstances to approve the variation. The variation will operate on and from 10 January 2024 being the date of the approval of the Agreement. Having approved the variation pursuant to s.218A and given the variation an operative date of 10 January 2024, it is unnecessary to deal with the matter under s.602A of the Act.
DEPUTY PRESIDENT
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