DM Drainage & Construction Pty Ltd as Trustee for the DM Unit Trust T/A DM Civil

[2025] FWCA 1864

[2025] FWCA 1864

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 218A—Variation of enterprise agreement

DM Drainage & Construction Pty Ltd as Trustee for the DM Unit Trust T/A DM Civil

(AG2025/1395)

DM CIVIL OPERATIONS ENTERPRISE AGREEMENT 2025

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 3 JUNE 2025

Application for variation of the DM Civil Operations Enterprise Agreement 2025.

1. DM Drainage & Construction Pty Ltd as Trustee for the DM Unit Trust trading as DM Civil (the Applicant) has made an application under s 218A of the Fair Work Act 2009 (Cth) (the Act) to vary the DM Civil Operations Enterprise Agreement 2025 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by the Commission on 22 April 2025 and commenced operation on 29 April 2025. The Applicant is the employer covered by the Agreement. No employee organisation is covered by the Agreement. 

Variation sought

1. The application seeks to vary the Agreement in two ways: first, to insert the words ‘from 50kms outside’ in clauses 10.4.1 and 10.4.2 at page 15 of the Agreement. The Applicant submits that making this change will reflect the wording used in ‘Schedule 1 – Allowances’ of the Agreement for ‘Travel Allowance (Remote)’ and remove any ambiguity.

1. The addition of the words ‘from 50kms outside’ is proposed in the third paragraph of clause 10.4.1 and in the second sentence of clause 10.4.2 to read as follows:

   10.4.1 Travel Allowance (Time for Remote and Metro travelling)

   ….. Travel Allowance (Remote) is for projects located outside of the 50km radius, and is time based (rounded to 15-minute intervals, based upon driving time using Google Maps from 50kms outside of the Perth GPO to the project site location) and paid using the employees hourly base rate of pay multiplied by the time to the site location…’

   …..

   10.4.2 Vehicle Allowance (beyond metro)

   Payable where an employee is required to drive their own vehicle to and from projects that fall outside the 50km radius of the Perth GPO. Kilometres are calculated using Google Maps Measure Distance Tool (i.e., as the crow flies or a straight line), from 50kms outside of the Perth GPO to the project location. This allowance will not be paid in circumstances where the Employer provides the Employee with a vehicle or transport to and from the site. The kilometre rate is based on the current financial year rate provided by the Award for KMS outside of the 50KM radius from Perth GPO.

1. Second, the application seeks to correct three clause references in ‘Schedule 1 – Allowances’ at page 30 of the Agreement. The Applicant seeks to replace the references to ‘Clause 10.4.8’, ‘Clause 10.4.9’ and ‘Clause 10.4.10’ with ‘Clause 10.4.9’, ‘Clause 10.4.10’and Clause 10.4.11’.

1. The Applicant submits that these changes correct or amend the obvious errors and remove any ambiguity regarding the ‘Travel Clauses’.

1. Section 218A of the Act came into effect on Wednesday 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) and 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;

(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.

Consideration

1. The variation sought by the Applicant is to resolve an omission and a numbering error resulting in incorrect references to clauses in the Agreement. In the circumstances, I am satisfied that it is appropriate for the Commission to vary the Agreement to make the changes set out at paragraphs [3]–[5] above.

1. Based on the material before me, I am satisfied that the errors in the Agreement are obvious errors or irregularities 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, in accordance with s 218A(2)(b)(i) of the Act. The variation will operate from 3 June 2025. An Order[1] giving effect to the variation is issued separately.

COMMISSIONER

[1] PR787871.

Printed by authority of the Commonwealth Government Printer

<AE528734  PR787870>