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

[2024] FWCA 3882

[2024] FWCA 3882

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

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

(AG2024/3606)

NAVASKA CONSTRUCTION PTY LTD AND CEPU PLUMBING DIVISION MECHANICAL UNION COLLECTIVE AGREEMENT 2023 – 2026

Plumbing industry
COMMISSIONER CONNOLLY	MELBOURNE, 8 NOVEMBER 2024

Application for variation of the Navaska Construction Pty Ltd and CEPU Plumbing Division Mechanical Union Collective Agreement 2023 – 2026

1. An application has been made for approval of a variation to the Navaska Construction Pty Ltd and CEPU Plumbing Division Mechanical Union Collective Agreement2023 – 2026 (the Agreement). The application was made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia pursuant to section 210 of the Fair Work Act 2009 (the Act).

1. The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

1. I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

1. The Agreement lodged contained an error in Clause 41.3 which contained a reference to an incorrect clause. The section of the Clause 41.3 which contains the error provides the following:

“Overtime includes all time worked beyond the ordinary hours of work as prescribed in clause 39 – Ordinary Hours, inclusive of time worked for accrual purposes as prescribed.”

1. Section 218A, which came into effect on 7 December 2022, is 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; 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.”

1. As has been noted in recent decisions of the Commission,[1] s.218A of the Act is not unlike 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. 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.

1. Before an amendment under s.218A can be made, the Commission must first be satisfied 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. I am satisfied that the existence of an error in Clause 41.3 of the Agreement which contains a reference to an incorrect clause is an obvious error. While section 218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied that the amendment should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the error is readily identified, as is the correction needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The error in the above clause will be amended to reflect the correct clause references provided by the Employer, as ordered below.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error as follows:

1. By deleting the reference to “clause 39” in Clause 41.3 of the Agreement and replacing it with “clause 38”

2. This variation will take affect from 8 November 2024

1. The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

1. In accordance with s.216 of the Act, the variation operates from 8 November 2024.

COMMISSIONER

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

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