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

[2025] FWCA 1210

[2025] FWCA 1210

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

(AG2025/816)

RYCON POWER TECHNOLOGIES PTY LTD & ETU NSW/ACT HVAC UNION AGREEMENT 2024-2026

Electrical contracting industry
COMMISSIONER MATHESON	SYDNEY, 10 APRIL 2025

Application for variation of the Rycon Power Technologies Pty Ltd & ETU NSW/ACT HVAC UNION AGREEMENT 2024-2026

1. An application has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) pursuant to s.218A of the Fair Work Act 2009 (Cth)(Act) to vary the Rycon Power Technologies Pty Ltd & ETU NSW/ACT HVAC Union Agreement 2024-2026 (Agreement) to correct or amend an error, defect or irregularity.

1. The Agreement was approved by the Fair Work Commission (Commission) on 26 September 2024 and commenced operation on 3 October 2024. The Applicant is the employer covered by the Agreement. The Agreement is a greenfields agreement made between the Applicant and Rycon Power Technologies Pty Ltd (Employer), the employer covered by the Agreement.

1. Section 218A(1) provides that the Commission may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). The Agreement lodged with and published by the Commission is missing page 77. The effect of this is that it is missing part of the delegates rights clause. The Applicant seeks to have the Agreement varied to correct an obvious error such that the Agreement includes the missing page 77 and the Employer consents to the application.

1. The relevant background to the application is as follows:

·   On 30 August 2024, Samuel Ryan (Mr Ryan), the Director of the Employer, received an email from Fred Barbin (Mr Barbin), the Applicant’s Assistant Secretary of its New South Wales and ACT Branch, which attached a version of the Agreement signed by Mr Barbin which included page 77.[1]

·   On 2 September 2024 Mr Ryan emailed another version of the Agreement to Mr Barbin which contained some corrections and which still included page 77.[2]

·   Mr Barbin replied to Mr Ryan via email on 2 September 2024 and attached a signed copy of the Agreement however, unbeknown to Mr Ryan, this was missing page 77.[3]

·   Mr Barbin did not notice that page 77 of the Agreement was missing at the time.[4]

1. Mr Ryan had understood that the version of Agreement signed by Mr Barbin and sent to him on 2 September was exactly the same as the version of the Agreement he had sent through earlier that day, including page 77.[5]  Both Mr Ryan and Mr Barbarin, the signatories of the Agreement, said they would not have signed the Agreement had they known it was missing page 77.[6]

1. Section 218A of the Act provides:

‘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.

1. 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. Section 218A is intended to simplify the process for correcting obvious errors, defects or irregularities in enterprise agreements.[7] It is clear that neither party intended to omit page 77 of the Agreement from the Agreement that they made. Having regard to the evidence of Mr Ryan and Mr Barbin, including the extrinsic material attached to their statements concerning what agreement the parties understood they were making, I find that an obvious error has been made. Having found that there is an obvious error in the Agreement I have decided to exercise my discretion to amend it so as to give effect to the substantive agreement made between the Applicant and Employer.

1. Pursuant to section 218A of the Act, I vary the Agreement to correct this obvious error such that the Agreement now includes the missing page 77. The complete Agreement is attached to this decision.

1. The variation operates from 3 October 2024 being the date the Agreement commenced operation.

COMMISSIONER

[1] Statement of Samuel Ryan dated 11 March 2025 at [3], Annexure SR1.

[2] Statement of Samuel Ryan dated 11 March 2025 at [3].

[3] Statement of Samuel Ryan dated 11 March 2025 at [4], Annexure SR2.

[4] Statement of Fred Barbin dated 21 March 2025 at [5].

[5] Statement of Samuel Ryan dated 11 March 2025 at [3].

[6] Statement of Fred Barbin dated 21 March 2025 at [5]; Statement of Samuel Ryan dated 11 March 2025 at [6].

[7] Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 at [772].

Printed by authority of the Commonwealth Government Printer

<AE526196  PR785997>