Diamantina Power Station Pty Ltd
[2023] FWCA 2096
•17 JULY 2023
| [2023] FWCA 2096 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Diamantina Power Station Pty Ltd
(AG2023/2078)
APA DIAMANTINA POWER STATION ENTERPRISE AGREEMENT 2023
| Electrical power industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 17 JULY 2023 |
Application for approval of the APA Diamantina Power Station Enterprise Agreement 2023; application to vary the APA Diamantina Power Station Enterprise Agreement 2023 to correct or amend obvious error
Diamantina Power Station Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the APA Diamantina Power Station Enterprise Agreement 2023 (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.
Clause 6.4(h) of the Agreement provides that the Agreement’s provisions concerning redundancy do not apply to ‘Apprentices and/or Employees engaged on a Traineeship agreement.’ The Commission identified that notwithstanding the reference to apprentices and trainees in clause 6.4(h), the Agreement is silent on rates of pay for these workers, and this would potentially pose a barrier to the Agreement satisfying the better of overall test.
In response to the issue being raised, the Applicant elected to make an application pursuant to s 218A of the Act for the variation of the Agreement. The variation sought by the Applicant is the deletion of the third bullet point of clause 6.4(h) to remove the reference to apprentices and trainees.
Section 218A of the Act provides:
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.
In BHP Coal Pty Ltd, the Vice President noted the following regarding the insertion of s 218A into the Act:
Section 218A is a new provision in the FW Act enacted by virtue of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The terms of s. 218A are substantially similar to those in s. 602 of the Act and the Explanatory Memorandum to the Bill states that s. 218A is intended fill a regulatory gap by extending the operation of the “slip rule” to correct or amend obvious errors, defects or irregularities, whether in substance or form, in enterprise agreements. The provision addresses a regulatory gap, as the existing “slip rule” in section 602 enables the FWC’s decisions, but not enterprise agreements, to be corrected.[1]
In support of the s 218A application, the Applicant submitted that the reference to apprentices and trainees in clause 6.4(h) is the only reference to such workers in the Agreement, and that no apprentices or trainees will be covered by the Agreement.
A question that the s 218A application raises is whether the Agreement can be varied in the manner sought by the Applicant as part of my consideration of approval of the Agreement. The answer to that question is yes, in my view, for the reasons that follow.
There are a number of conditions precedent necessary for the exercise of discretion under s 218A. Whilst the Commission may amend of the Agreement on its own initiative, an application may also be made by those parties set out in ss 218A(2)(b). The application has been made by the Applicant which is the employer that is covered by the Agreement thus satisfying that requirement. There must also be an enterprise agreement that is the subject of the application. In the present case the Agreement has not yet been approved however that is not a barrier to the use of s 218A for the following reasons.
An enterprise agreement is defined at s 12 of the Act to mean:
(a) a single-enterprise agreement; or
(b) a multi-enterprise agreement.
A single-enterprise agreement is defined in s 12 of the Act to mean ‘an enterprise agreement made as referred to in sub-section 172(2)’. Section 172(2) of the Act relevantly states that:
An employer, or 2 or more employers that are related employers, may make an enterprise agreement (a single-enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement: or
…
An enterprise agreement is made pursuant to s 182(1) of the Act in the following
Circumstances:
(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.
It is apparent on the material filed with the application for approval of the Agreement that employees were requested by the Applicant to approve the Agreement by voting on it (s 181(1)) in a ballot conducted on 7 June 2023 to 9 June 2023. A valid majority of employees who participated in the ballot approved the Agreement which was made on 9 June 2023 (s 182(1)). As the Agreement was made on 9 June 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.
I am satisfied that the reference to apprentices and trainees in clause 6.4(h) of the Agreement is an obvious error and that I should exercise my discretion to vary the Agreement to omit such reference. There are no grounds of which I am aware that would tend against the exercise of my discretion to vary the Agreement. Further, I note that the bargaining representatives did not object to the variation. An Order[2] will issue concurrently with this decision varying the Agreement such that the third bullet point in clause 6.4(h) is deleted.
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.
The Agreement was approved on 17 July 2023 and, in accordance with s 54, will operate from 24 July 2023. The nominal expiry date of the Agreement is 17 July 2027.
DEPUTY PRESIDENT
[1] [2023] FWCA 115.
[2] PR764045.
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