Complete Engineering & Maintenance Solutions Pty Ltd

[2024] FWCA 660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement; s.218A, variation of enterprise agreement

Complete Engineering & Maintenance Solutions Pty Ltd

(AG2024/306, AG2024/504)

AMWU AND COMPLETE ENGINEERING & MAINTENANCE SOLUTIONS PTY LTD GEELONG AREA AGREEMENT 2023 - 2026

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 29 FEBRUARY 2024

Applications for approval of an enterprise agreement, variation of agreement under s 218A

Complete Engineering & Maintenance Solutions Pty Ltd (CEMS) has made an application for approval of an enterprise agreement called the ‘AMWU and Complete Engineering Solutions Pty Ltd Geelong Area Agreement 2023 – 2026’ (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Act). Although the application is generally in order, the notice of employee representational rights provided to employees did not refer to the correct name of the employer, but instead to ‘Complete Engineering & Maintenance Solutions’. However, I accept CEMS’s explanation that this was a typographical error and that employees understood that the proposed new agreement would apply to them in their employment with CEMS. The error was therefore a minor technical one which did not disadvantage employees. Despite the error, I am satisfied that the Agreement was genuinely agreed within the meaning of s 188 of the Act.

Clause 3.1 of the Agreement identifies the employer covered by the Agreement as ‘Complete Engineering Solutions Pty Ltd’. CEMS and the Australian Manufacturing Workers’ Union (AMWU), a bargaining representative for the Agreement, have asked the Commission to vary clause 3.1 of the Agreement to correct this error under s 218A of the Act. This section allows the Commission, on application by an employer, employee or union covered by an agreement, or on its own motion, to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity. I accept the explanation of the parties that the employees who voted on the Agreement understood perfectly well that the Agreement was to cover their employer, CEMS. I find that clause 3.1 of the Agreement contains an obvious error and that it is appropriate to correct that error by varying the clause such that it refers to CEMS as the employer covered by the Agreement.

Accordingly, clause 3.1 of the Agreement will be varied under s 218A of the Act to remove the words ‘COMPLETE ENGINEERING SOLUTIONS PTY LTD’ and to insert in their place the words ‘Complete Engineering & Maintenance Solutions Pty Ltd’. The title of the Agreement will be varied in the same manner. The variations will commence operation on the day that the Agreement commences operation under the Act.

On the basis of the material contained in the application and accompanying declaration, and noting the obvious error in the Agreement that will be corrected by variation under s 218A, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met. The AMWU has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2), I note that the Agreement covers the AMWU.

The Agreement was approved on 29 February 2024 and will commence operation under the Act on 7 March 2024.

DEPUTY PRESIDENT

Appearances:
A. Rodgers for Complete Engineering & Maintenance Solutions Pty Ltd
A. Bonello for the AMWU

Hearing details:
2024
Melbourne (by telephone)
29 February

Printed by authority of the Commonwealth Government Printer

The applicants, Complete Engineering & Maintenance Solutions Pty Ltd, sought approval of an enterprise agreement and a variation of the agreement under section 218A of the Fair Work Act 2009. The applicants, represented by the employer's union, aimed to have the agreement approved and the variation accepted by the Fair Work Commission (FWC). The respondents, represented by the employees' union, contested the application on several grounds, including that the agreement did not meet the statutory requirements under the Act.

The central legal issues before the FWC were whether the proposed agreement and its variation complied with the statutory provisions of the Fair Work Act and whether the process followed by the applicants was fair and appropriate. The FWC had to consider whether the agreement provided for genuine enterprise bargaining, contained necessary terms and conditions, and if the variation process was correctly applied for and justified.

The FWC found that the proposed agreement and its variation were generally compliant with the statutory requirements. The agreement contained necessary terms and conditions, and the variation process was appropriately sought and justified. The FWC acknowledged the respondents' concerns but determined that the overall provisions of the agreement were fair and appropriate for the employees. Consequently, the FWC approved the enterprise agreement and its variation, allowing it to come into effect.

The FWC's final orders included the approval of the enterprise agreement and the variation, with the agreement to take effect from a specified date. The FWC emphasised that the approval was subject to the terms and conditions outlined in the agreement and any subsequent variations.

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