Bundaberg Brewed Drinks Pty Ltd
[2024] FWCA 2057
•5 JUNE 2024
| [2024] FWCA 2057 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Bundaberg Brewed Drinks Pty Ltd
(AG2024/1326)
BUNDABERG BREWED DRINKS ENTERPRISE AGREEMENT 2023
| Food, beverages and tobacco manufacturing industry | |
| COMMISSIONER HUNT | BRISBANE, 5 JUNE 2024 |
Application for variation of the Bundaberg Brewed Drinks Enterprise Agreement 2023
Bundaberg Brewed Drinks Pty Ltd (the Employer) has made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the Bundaberg Brewed Drinks Enterprise Agreement 2023 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Fair Work Commission (the Commission) on 25 January 2024.[1] The United Workers’ Union (UWU), “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are employee organisations covered by the Agreement.
It had come to the Employer’s attention on 6 February 2024 that the base rate of pay for both Level C7 Electrician and Level C7 Electrician – Leading Hand (the Affected Employees), listed in the pay rate table under clauses 14.1 and 14.2 of the Agreement, were incorrect and had occurred as a result of a typographical error. The error is that the rate of pay for the Affected Employees does not include the proper increased rate percentage that had been applied to all other levels and were therefore lower than the increase the parties had agreed to in their bargaining.
Despite the error, the Employer has been paying the Affected Employees at the correct rate, and all systems have been updated to reflect the same.
The Employer submitted that the variation sought will result in Level C7 Electricians and Leve C7 Electricians – Leading Hand being paid a higher hourly rate than that under the Agreement and will ensure that the rate of pay applies the relevant percentage increased which was agreed to by employees and their bargaining representatives during bargaining and was added to all other classifications upon commencement of the Agreement.
For the reasons outlined above, the Employer submitted that the correction is an obvious error, defect or irregularity under s.218A(1) of the Act and this amendment will not disadvantage the employees covered by the Agreement.
The UWU, AMWU and CEPU were invited to provide its views in respect to the variation application. Only the UWU responded, advising that it supports the application for variation.
Relevant Legislation
Section 218A came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. It 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.
(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.”
Consideration
In the decision of Doctors in Training (Victoria Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022 – 2026,[2] Deputy President Masson observed as follows:
“[9] It is apparent from the text of s. 218A and the supporting EM 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, ss.201 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.” (footnotes omitted)
The contended error is in clauses 14.1 and 14.2, which sets out the minimum wages of Level C7 Electrician and Level C7 Electrician – Leading Hand, to increase the wages as bargained.
Having regard to the contentions of the Employer and the views of the UWU, I am satisfied that the error is an obvious technical or administrative error that occurred during drafting and would fall within the scope of s.218A(1). The error does not accurately reflect the Agreement in which the employees have agreed to.
Conclusion
For the reasons set out above, I am satisfied that the error contained in clauses 14.1 and 14.2 of the Agreement is an obvious 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, thus satisfying the requirements of s.218A(2)(a) of the Act. The variation sought will operate from the operative date of the Agreement, being 1 February 2024. An order giving effect to this decision will be issued separately.
COMMISSIONER
[1] [2024] FWCA 359.
[2] [2022] FWCA 4390.
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