Buller Ski Lifts Pty Ltd
[2023] FWCA 844
•22 MARCH 2023
| [2023] FWCA 844 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
s.218A— Enterprise agreement
Buller Ski Lifts Pty Ltd
(AG2023/446)
BULLER SKI LIFTS PTY MOUNTAIN OPERATIONS ENTERPRISE AGREEMENT 2023
| Tourism industry | |
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 22 MARCH 2023 |
Application for approval of the Buller Ski Lifts Pty Mountain Operations Enterprise Agreement 2023 - Application to vary the Buller Ski Lifts Pty Mountain Operations Enterprise Agreement 2023 to correct or amend obvious error
Approval
On 26 February 2023 Buller Ski Lifts Pty Ltd (the Employer) made an application pursuant to s.185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the Buller Ski Lifts Pty Mountain Operations Enterprise Agreement 2023 (Agreement).
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 March 2023. The nominal expiry date of the Agreement is 30 June 2026.
Variation
In conjunction with the approval application the Employer filed draft undertakings identifying and seeking to correct the following errors (Identified Errors):
1. At clause 20.1 c) the word “Groomer” should read “Snowmaker”; and
2. At clause 20.2 b) the equipment allowance should apply to Employees as well as Annualised Employees who are in the LRW4, LRW5 and LSL classifications.
As the Identified Errors did not raise any concerns that any approval requirement in ss 186 or 187 had not been met the proffered undertakings were not accepted. The Employer was invited to apply under s. 218A of the Act for the Commission to vary the Agreement to correct or amend an obvious error, defect or irregularity.
On Friday, 17 March 2023 the Employer applied under s. 218A(1) of the Act to vary the Agreement to correct the Identified Errors on the basis that the Identified Errors are obvious typographical errors.
In a letter from the Employer to the Commission dated 17 March 2023 the Employer identified a third error and explained they had removed an erroneous letter “s” after the word “way” at clause 20.5 a) of the Agreement and filed the amended Agreement with their application. Along with the letter, the Agreement as approved was filed with the Commission.
Section 218A of the Act provides:
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; or
(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 (Amendment Act), 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. In the result s 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.
As to the Identified Errors, it is plainly the case, when regard is had to clause 20.1 c) that Snowmakers, not Groomers, are the subject of this clause, that the reference to “the Groomer” is a typographical error. The exclusion of non-Annualised Employees employed in LRW4, LRW5 and LSL classifications from the entitlement to the equipment allowance in clause 20.2 b) is also an obvious error since it is plain that all Employees are to receive the equipment allowance.
As for the stray letter “s” after “way” at clause 20.5 a), this is clearly minor typographical error.
These errors should be corrected by varying the Agreement. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement. I propose to amend the errors identified above and order as such below.
Order
I order, pursuant to s 218A of the Act, that the Agreement be amended to correct obvious errors as follows:
1. In clause 20.1 c) delete the word “Groomer” and insert in its place “Snowmaker”;
2. In clause 20.2 b) insert the words “and Employees” after “Annualised Employees”; and
3. In clause 20.5 a) delete the letter “s” directly after the word “way”.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE519523 PR760443>
Annexure A
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