Construction, Forestry and Maritime Employees Union

[2025] FWCA 2279

[2025] FWCA 2279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Construction, Forestry and Maritime Employees Union

(AG2025/2076)

QUBE PORTS PTY LTD PORT OF FREMANTLE ENTERPRISE AGREEMENT 2024

Stevedoring industry
DEPUTY PRESIDENT BINET	PERTH, 10 JULY 2025

Application for variation of the Qube Ports Pty Ltd Port of Fremantle Enterprise Agreement 2024 - variation granted

1. On 1 July 2025, Construction, Forestry and Maritime Employees Union (CFMEU) filed an application (Application) pursuant to section 218A of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC).  The Application sought that the FWC order that clauses 20.3.7, 23.1.8 and 25.3 of the Qube Ports Pty Ltd Port of Fremantle Enterprise Agreement 2024 (Agreement) be varied to correct or amend errors, defects or irregularities.

1. The parties to the Agreement are Qube Ports Pty Ltd (Qube) and the stevedoring employees engaged by Qube within the Port of Fremantle (Employees). 

1. The Agreement was negotiated with Qube on behalf of the Employees by the CFMEU.  The CFMEU are covered by the Agreement.

1. The Agreement was approved by Deputy President Masson on 1 May 2025 and commenced operation on 8 May 2025 and has a nominal expiry date of 30 June 2028.

1. The Employer consents to the Application.

Consideration

1. Section 218A of the Act provides the following:

“s.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).

1. 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. The CFMEU is an employee organisation covered by the Agreement and therefore has standing to make the Application under s 218A(2)(b)(iii) of the FW Act.

1. The discretion to vary an agreement may only be exercised if the FWC is satisfied that an obvious error, defects or irregularity exists (whether in substance or form).  The terms errors, defects or irregularities are not synonymous terms. 

1. The process of identifying errors, defects or irregularities involves making an objective assessment of the words used in the provisions under examination. The words used must be construed having regard to their context.[1]

1. Clauses 20.3.7, 23.1.8 and 25.3 contain cross referencing errors to other sections of the agreement.

1. In exercising the discretion to vary an agreement, the FWC should have regard to the mutual intention of the parties at the time the agreement was made.[2] The task is to place the parties in the position they intended by their agreement – insofar as the wording of the agreement does not reflect that intention. [3]

1. The task of identifying the objectively ascertained mutual intention of the parties does not depend on evidence of what each party says they intended.  It is a more confined task.[4] 

1. Although a significant factor, the objectively ascertained mutual intention of the parties is not the only consideration. However, it would be unusual for other considerations to weigh in favour of a variation that was inconsistent with the intention of the parties.[5]

1. The exercise of the discretion conferred on the FWC to vary an agreement which contains errors, defects, irregularities does not give rise to a general discretion to determine the matter based on industrial fairness.[6]

1. Having regard to the mutual intention of the parties as reflected in their joint support for the Application I am satisfied that amending clauses 20.3.7., 23.1.8 and 25.3 will amend an error and will place the parties in the position they intended by their agreement.

1. An order[7] to this effect will issue with this decision.

DEPUTY PRESIDENT

[1] [2019] FWCA 979 at [11].

[2] Application by Bradnam’s Windows and Doors Pty Ltd [2019] FWCA 979 at [11], Re Australian and International Pilots Association[2007] AIRC 303 at [17].

[3] Ibid.

[4] Australian and International Pilots Association [2007] AIRC 303 at [18].

[5] Australian and International Pilots Association [2007] AIRC 303 at [17].

[6] Ibid.

[7] PR789089.

Printed by authority of the Commonwealth Government Printer

<AE528844  PR789090>