Campbell's Australasia Pty Limited T/A Campbell’s Soup Australia
[2024] FWCA 1245
•8 APRIL 2024
| [2024] FWCA 1245 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Campbell's Australasia Pty Limited T/A Campbell’s Soup Australia
(AG2024/1096)
CAMPBELL'S SOUP ENTERPRISE AGREEMENT 2023
| Food, beverages and tobacco manufacturing industry | |
| COMMISSIONER JOHNS | MELBOURNE, 8 APRIL 2024 |
Application for variation of the Campbell's Soup Enterprise Agreement 2023
Campbell's Australasia Pty Limited T/A Campbell’s Soup Australia (Applicant) has made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the Campbell's Soup Enterprise Agreement 2023 (Agreement) to correct or amend an error, defect or irregularity in the Agreement (Application).
The Agreement was approved by the Fair Work Commission (Commission) on 4 April 2024 and will commence operation on 11 April 2024.[1] The Applicant is the employer covered by the Agreement.[2] The CEPU and the AMWU are also covered by the Agreement. The Applicant submits that the Agreement contains a typographical error.
On 5 April 2024, the AMWU confirmed via an email to my Chambers that it does not oppose the application. On 8 April 2024, the CEPU confirmed the same.
Statutory Provisions
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) Bill 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:
‘(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.’
The Explanatory Memorandum (EM) that supports the above-referred Bill relevantly states 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.’
Consideration
The Applicant seeks to amend the fifth column of the first row in tables appearing at clauses,
2.1.1 (wages – production);
2.1.2 (wages – metals);
2.1.3 (wages – electrical);
2.1.4 (apprentices);
2.1.5 (adult apprentice);
2.2.2 (leading hand allowance – all);
2.2.3 (meal – all);
2.2.4 (service component – metal and electrical);
2.2.5 (total allowance – metal and electrical);
2.2.6 (first aid allowance); and
2.2.7 (hand stacked containers – production).
The third, fourth and fifth columns in each of the above tables sets out the rates of pay as at 3 April 2023, 1 April 2024 and 7 April 2024 respectively. The Applicant submits that the fifth column should rather be 7 April 2025 and relied on clause 2.1 of the Agreement and the terms and effect document which was circulated to employees prior to the voting on the Agreement. Clause 2.1 of the Agreement says as follows,
‘This Agreement provides a total increase in remuneration and benefits equivalent to an increase of 3.98% in year one, 4.48% in year two and 3.48% in year three of the Agreement.’
The second row accurately reflects the percentage increases referred to in clause 2.1 in all of the tables. The Applicant submits that therefore the Agreement contains a drafting error of the kind contemplated by s.218A of the Act, as the date for year three has been transposed incorrectly.
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 identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union[3] (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. 210 or 217, might be used to rectify such error, defect or irregularity.
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.
In the present case the contended error is that of incorrectly transposing the date of year three during the Agreement drafting process. Having considered the Application, I am satisfied that the contended error is of the kind contemplated by s.218A, such that a variation is warranted.
Conclusion
For the reasons set out above, I am satisfied that the identified error is 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 covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(i) of the Act. The variation sought will operate from 8 April 2024. An order giving effect to this decision will be separately issued [PR773251].
COMMISSIONER
[1] [2024] FWCA 1206.
[2] Agreement, clause 1.2.
[3] [2021] FWCFB 453.
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