Devro Pty Limited
[2023] FWCA 2555
•15 AUGUST 2023
| [2023] FWCA 2555 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Devro Pty Limited
(AG2023/2647)
DEVRO PTY LIMITED MAINTENANCE EMPLOYEES ENTERPRISE AGREEMENT 2023
| Food, beverages and tobacco manufacturing industry | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 15 AUGUST 2023 |
Application for approval of the Devro Pty Limited Maintenance Employees Enterprise Agreement 2023 – s.218A variation to correct or amend obvious error.
Approval
An application has been made for approval of an enterprise agreement known as the Devro Pty Limited Maintenance Employees Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Devro Pty Limited. The Agreement is a single enterprise agreement.
The notification time for the Agreement under s.173(2) was 12 September 2022 and the Agreement was made on 24 July 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]
Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.
The Australian Workers’ Union (AWU), 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) I note that the Agreement covers the organisation.
The Agreement was approved on 15 August 2023 and, in accordance with s.54 of the Act, will operate from 22 August 2023. The nominal expiry date of the Agreement is 3 January 2026.
Variation
The Agreement lodged contained some cross-referencing errors in Annexure D, such that ‘Error! Reference source not found.’ appears instead of the intended clause reference. In a Form F1 filed with the application for approval, the Applicant identified the cross-referencing errors in Annexure D and requested the errors be corrected pursuant to s.586 of the Act by substituting pages 51-52 of the Agreement with new pages 51-52 filed separately, that have the cross-referencing errors corrected.
On 14 August 2023 I wrote to the parties advising that I considered it more appropriate to correct the cross-referencing errors pursuant to s.218A of the Act as an ‘obvious error’, and that I would substitute pages 51 and 52 of the Agreement (being Annexure D) with the replacement pages provided that have the errors corrected. Parties were provided an opportunity to provide submissions if they disagreed with this proposed course of action. No objection was received.
Section 218A, which came into effect on 7 December 2022, is 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; or
(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.”
As has been noted in recent decisions[2] of the Commission, s.218A of the Act is akin to the slip rule found in s.602 of the Act which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. Its evident purpose is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.
Before an amendment under s.218A can be made, there first must be satisfaction of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.
I am satisfied that the cross-referencing errors in Annexure D of the Agreement are obvious errors. While s.218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied the amendments should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the errors are readily identified, as are the corrections needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The cross-referencing errors will be amended as per the order below. I have also substituted the original pages of Annexure D with replacement pages that have the cross-referencing errors corrected to reflect the amendments made to the Agreement.
Order
I order, pursuant to s.218A of the Act, that the Agreement be varied to correct obvious errors as follows:
- By deleting “Error! Reference source not found.” where it appears in Annexure D clause 2(e) and replacing it with “2(c)”.
- By deleting “Error! Reference source not found.” where it appears in Annexure D clause 4 and replacing it with “ 2(e)”.
The variation will operate from 15 August 2023. The published Agreement will contain the corrections described in the above order.
DEPUTY PRESIDENT
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
[2] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).
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