Con-Tec Pty. Ltd. - [2025] FWCA 1539

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Con-Tec Pty. Ltd. [2025] FWCA 1539
Case: [2025] FWCA 1539
Decision Date: 8 MAY 2025

CaseChat Overview and Summary

Con-Tec Pty. Ltd. has applied for approval of the Con-Tec Pty Ltd Enterprise Agreement 2024 under section 185 of the Fair Work Act 2009. The application was made by the employer, Con-Tec Pty. Ltd., seeking approval for the enterprise agreement, which is intended to govern the terms and conditions of employment for its employees in the cement and concrete products industry. The application was heard by Deputy President Butler in Brisbane on 8 May 2025.

The legal issues before the court involved the correction of errors within the agreement, specifically concerning typographical errors in clauses 7.2 and 7.3, and an error in the nominal expiry date specified in clause 4. The court needed to determine whether it had the authority to correct these errors under the Fair Work Act, and if so, which provisions of the Act would apply. The Deputy President considered whether sections 217 and 218A of the Fair Work Act could be used to correct these errors at the time of approving the enterprise agreement.

The Deputy President concluded that the powers under sections 217 and 218A of the Fair Work Act could indeed be exercised at the time of approving the enterprise agreement. These sections allow for the correction of obvious errors, defects, or irregularities in the agreement. The Deputy President found that the corrections to clauses 4, 7.2, and 7.3 should be made pursuant to section 218A, and alternatively, the correction to clause 4 could also be made pursuant to section 217. The court approved the corrected version of the agreement filed by the Employer on 17 April 2025.

The Deputy President also considered the Employer's undertaking given under section 190 of the Fair Work Act, which was deemed to be not likely to cause financial detriment to any employee covered by the Agreement and did not result in substantial changes to the Agreement. With the undertaking in place and after considering the Statement of Principles and other relevant documents, the Deputy President concluded that all requirements of sections 186, 187, 188, and 190 of the Fair Work Act had been met. The Deputy President approved the Agreement, which will operate according to section 54 of the Fair Work Act, with a nominal expiry date of 8 May 2029.

Orders