Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2025] FWCA 3307

[2025] FWCA 3307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(AG2025/3327)

RAIL CONTROL SYSTEMS AUSTRALIA PTY LTD AND CEPU ELECTRICAL DIVISION CROSS RIVER RAIL PROJECT AGREEMENT 2025-2027

Electrical contracting industry
COMMISSIONER SPENCER	BRISBANE, 1 OCTOBER 2025

Application for variation of the Rail Control Systems Australia Pty Ltd and CEPU Electrical Division Cross River Rail Project Agreement 2025-2027 – consent variation – application granted.

1. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) has applied pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Rail Control Systems Australia Pty Ltd and CEPU Electrical Division Cross River Rail Project Agreement 2025-2027 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by the Commission on 2 July 2025 and commenced operation on 9 July 2025. The Applicant is a union covered by the Agreement and has standing pursuant to s.218A(2)(b)(iii). Rail Control Systems Australia Pty Ltd (the employer) is the employer covered by the Agreement.

1. A Form F1 was lodged with the application which sought to vary provisions of the Agreement pursuant to s.218A of the Act (the Form).

1. The Form highlighted the absence of a clause 4.5.17 which provided employees with  an allowance available under the previous Agreement and which was agreed but mistakenly not included in the agreement.

1. I am satisfied that s.218A applies to the variations at paragraph 4 of this Decision.

1. Section 218A provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:

“(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.”

1. As has been noted in recent decisions of the Commission,[1] s.218A of the Act is akin to the slip rule found in s.602 of the Act, 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. The evident purpose of s.218A 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.

1. Before an amendment under s.218A can be made, there first must be satisfaction of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

1. The Applicant submits that the amendment seeks to restore the entitlements to the Fit Out Running Tunnel Allowance as the Agreement was a rollover which mistakenly did not include the allowance. The Applicant submitted that the amendments are confirmed by consent of the employer and reflect the agreed allowances, avoiding any costs to the business other than as negotiated. The employer provided a signed statement agreeing this was a defect and they consent to the variation.

1. On 1 October 2025, my chambers wrote to the employer and the Applicant, seeking if they had views opposing the application. The employer confirmed they consent to the variation as sought.

1. I am satisfied that the errors in the Agreement outlined at paragraph 4 of this Decision are obvious errors. I am satisfied the amendments should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A(1) of the Act. In the present case, the errors are readily identified, as are the corrections needed to make the Agreement accurately reflect what was clearly intended in the agreement between the parties. The reasons set out in the Application form a consent basis and support the exercise of my discretion to correct the errors. The errors identified at paragraph 4, will be amended as per the order.

Order

1. I Order, pursuant to s.218A(1) of the Act, that Clause 4.5.17 be inserted into the Agreement as outlined in Annexure A.

1. The variations pursuant to s.218A(1) above will take effect from 9 July 2025 and the amendment will operate from the date of today’s decision, 1 October 2025.

COMMISSIONER

Annexure A

[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

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