Con-Tec Pty. Ltd.
[2025] FWCA 1539
•8 MAY 2025
| [2025] FWCA 1539 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Con-Tec Pty. Ltd.
(AG2025/635)
CON-TEC PTY LTD ENTERPRISE AGREEMENT 2024
| Cement and concrete products | |
| DEPUTY PRESIDENT BUTLER | BRISBANE, 8 MAY 2025 |
Application for approval of the Con-Tec Pty Ltd Enterprise Agreement 2024
Con-Tec Pty. Ltd. (“the Employer”) has applied for approval of an enterprise agreement known as Con-Tec Pty Ltd Enterprise Agreement 2024 (“the Agreement”). The Application was made under s.185 of the Fair Work Act 2009 (Cth) (“the Fair Work Act”). The Agreement is a single enterprise agreement.
Corrections
The Agreement contains some obvious typographical errors in clauses 7.2 and 7.3, relating to references to other provisions of the Agreement.
The Agreement also appears to contain an error, defect or irregularity in clause 4 of the Agreement, which relates to the nominal expiry date. Specifically, clause 4 states that the Agreement “shall commence seven (7) days after the date of approval with the Fair Work Commission and shall remain in force for a period of four (4) years.” This clause cannot take its literal meaning because section 185(5)(b) of the Fair Work Act requires that the nominal expiry date not be more than four years after the day on which the Commission approves the Agreement. The employer says the clause should provide that the Agreement “shall commence seven (7) days after the date of approval with the Fair Work Commission and shall remain in force for a period of four (4) years from the date of approval.”
The Employer sought to deal with these issues by filing a corrected copy of the Agreement.
Section 602 of the Fair Work Act does not empower the Commission to correct or amend the terms of an enterprise agreement.[1] A Full Bench has doubted that enterprise agreements can be corrected in reliance on section 586 of the Fair Work Act.[2]
Section 217 of the Fair Work Act provides for variation of enterprise agreements to remove an ambiguity or uncertainty. Section 218A provides for variation of enterprise agreements to correct or amend errors, defects or irregularities. The power provided for in section 218A can be exercised on the Commission’s own initiative.[3] The power under section 217 cannot.
In my view the powers under sections 217 and 218A of the Fair Work Act be exercised at the time of approving an enterprise agreement under section 185. The power allows the Commission to vary “an enterprise agreement” to correct or amend an obvious error, defect or irregularity (whether in substance or form).[4] “Enterprise agreement” means a single-enterprise agreement or a multi-enterprise agreement.[5] "Single-enterprise agreement" means an enterprise agreement made as referred to in subsection 172(2) of the Fair Work Act.[6] Section 185 of the Fair Work Act provides for approval of an enterprise agreement once it has been made. Accordingly, the Agreement is already an “enterprise agreement” at the time that approval is being considered, so the power under sections 217 and 218A to vary an enterprise agreement can be exercised at the time of that approval. The power to vary an enterprise agreement under section 217 has previously been exercised at the time of the approval of an enterprise agreement.[7]
The Employer seeks that the issues referred to above be cured in reliance on sections 217 and/or 218A of the Fair Work Act. I am satisfied that the corrections to clauses 4, 7.2 and 7.3 should be made and that it is appropriate to do so pursuant to section 218A of the Fair Work Act. Further and in the alternative, I am satisfied that the correction to clause 4 should be made and that it is appropriate to do so pursuant to section 217 of the Fair Work Act. The corrections to clauses 4, 7.2 and 7.3 are made in accordance with the amended copy of the Agreement filed by the Employer on 17 April 2025.
Undertaking
The Employer has given a written undertaking in accordance with section 190 of the Act. The undertaking is attached as Annexure A to this decision. I am satisfied that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement and does not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.
With the undertaking now given, and after having regard to the Statement of Principles as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.
NES
Noting clause 3 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (“NES”) in the Act will prevail where there is an inconsistency between the Agreement and the NES.
Conclusion and disposition
The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 8 May 2029.
DEPUTY PRESIDENT
Hearing details:
On the papers
Annexure A
[1] Advantaged Care Pty Ltd v Health Services Union[2021] FWCFB 453, [52].
[2] Construction, Forestry, Maritime, Mining and Energy Union v Mechanical Maintenance Solutions Pty Ltd [2020] FWCFB 1918, [33].
[3] Fair Work Act 2009 (Cth) s 218A(2)(a).
[4] Fair Work Act 2009 (Cth) subs 218A(1).
[5] Fair Work Act 2009 (Cth) s 12.
[6] Fair Work Act 2009 (Cth) s 12.
[7] The State of Victoria [2020] FWCA 5215.
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