D&E Air Conditioning Pty Ltd
[2023] FWCA 332
•2 FEBRUARY 2023
| [2023] FWCA 332 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
D&E Air Conditioning Pty Ltd
(AG2023/88)
D&E AIR CONDITIONING PTY LTD & CEPU SOUTH AUSTRALIA, MECHANICAL SERVICES AGREEMENT 2022-2025
| Plumbing industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 2 FEBRUARY 2023 |
Application for approval of the D&E Air Conditioning Pty Ltd & CEPU South Australia, Mechanical Services Agreement 2022-2025
D&E Air Conditioning Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the D&E Air Conditioning Pty Ltd & CEPU South Australia, Mechanical Services Agreement 2022-2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the CEPU, I note that the CEPU is covered by the Agreement.
On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met. In addition, I have permitted a variation to the Agreement under s 218A for the following reasons.
Application to vary the Agreement
On 24 January 2023, the Applicant requested, with the support of the CEPU, to have a table, attached to this decision and marked Annexure A, replaced at page 39 of the Agreement titled ‘Unregistered Plumbers’. According to both the Applicant and the CEPU the rates of pay for the ‘travel allowance’ were incorrect, having been based on the ordinary time rate of pay for ‘Registered Plumbers’. To explain further, Appendix A clause 3.4.1 provides that ‘travel allowance’ is paid at ‘three quarters of an hour per day travelling time calculated at ordinary time rates’. The ordinary time rate used for calculating the ‘travel allowance’ for Unregistered Plumbers was actually the applicable ordinary time rate for Registered Plumbers.
The Applicant applied under s 218A of the Act to make the correction to the enterprise agreement, which the parties said had inadvertently arisen.
Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth), provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides 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;
(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.
The Explanatory Memorandum that supports the above-referred Bill relevantly
states as follows:
772. This Part would remove unnecessary complexity in the agreement-making
process by amending the FW Act to:
·simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and
·provide a simple remedy to address the situation where the wrong version of enterprise agreement or variation has been inadvertently submitted to, and approve by, the FWC.[1]
Having considered the materials filed by the Applicant and the CEPU, it is evident that there was an error in transposing the pay rates for the travel allowance for Unregistered Plumbers. The ‘travel allowance’ attributed to Unregistered Plumbers does not align with the calculation for the ‘travel allowance’ at Appendix A clause 3.4.1. I am satisfied that, in the present case, the contended error is that of incorrectly transposing the rate of pay for the ‘travel allowance’ during the Agreement drafting process.
As the Agreement has adopted the ordinary time rate of pay for Registered Plumbers in the calculation of ‘travel allowance’ for Unregistered Plumbers under the relevant table in Appendix A of the Agreement, the Unregistered Plumbers are receiving more than what is provided for in Appendix A clause 3.4.1. Hence, allowing the variation will see the ‘travel allowance’ for Unregistered Plumbers decrease somewhat. However, both the CEPU and Applicant have consented to that course, and the application to correct the error has been discussed with relevant employees who are supportive of the change.
Having regard to the above, I am satisfied that the inadvertent error of transposing the
pay rates as detailed above was an error that arose during drafting of the Agreement prior to the ballot for approval of the Agreement. I am also satisfied that the transposing error is an error of substance which gives rise to an inconsistency between the table at Appendix A for Unregistered Plumbers and Appendix A clause 3.4.1 of the Agreement. I am satisfied that it is the latter clause which discloses the objective intent of the authors of the Agreement with respect to the amount of ‘travel allowance’ to be paid.
As the Agreement was made on 12 January 2023, it follows that it is an enterprise agreement made pursuant to s 172(2) and as defined under s 12 of the Act. As it is an enterprise agreement as defined under the Act, I am satisfied that it may be varied pursuant to an application made under s 218A of the Act.[2] In this respect, I rely upon the reasoning of the Deputy President in SVG Structures WA Pty Ltd,[3] observing that whilst he was contending with an application under s 217 of the Act, in light of the legislative provisions in ss 202–11, which refer to the term ‘enterprise agreement’, I consider his reasoning apposite in these circumstances.
For the reasons set out above and noting that I consider that the Agreement is an enterprise agreement[4] and is therefore amenable to be varied pursuant to an application made under s 218A, I am satisfied that the error contained in the table for Unregistered Plumbers in Appendix A is an error within the meaning of s 218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the employer covered by the Agreement, thus satisfying the requirements of s 218A(2)(b)(i) of the Act. The variation sought will operate from the time the Agreement comes into operation on 9 February 2023. The varied table is attached to this decision and marked Annexure B.
Conclusion
The Agreement was approved on 2 February 2023 and, in accordance with s 54, will operate from 9 February 2023. The nominal expiry date of the Agreement is 31 October 2025.
DEPUTY PRESIDENT
Annexure A
Annexure B
[1] Explanatory Memorandum, Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth) [772].
[2] See Royal District Nursing Service of SA Ltd [2022] FWCA 4288; SVG Structures WA Pty Ltd [2021] FWCA 6103.
[3] [2021] FWCA 6103.
[4] Advantage Care Pty Ltd v Health Services Union (2021) 304 IR 356, 365–6 [36]–[38].
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