Gibson’s Limited T/A Skretting Australia

[2023] FWCA 1694

[2023] FWCA 1694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Gibson’s Limited T/A Skretting Australia

(AG2023/1517)

Food, beverages and tobacco manufacturing industry
COMMISSIONER LEE	MELBOURNE, 9 JUNE 2023

Application for variation of the Skretting (Cambridge Operations) Enterprise Agreement 2023

1. On 22 May 2023, Gibson’s Limited T/A Skretting Australia (the Applicant) made an application pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Skretting (Cambridge Operations) Enterprise Agreement 2023 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by Deputy President Colman on 27 April 2023 and commenced operation from 4 May 2023. The United Workers’ Union (UWU) and Australian Workers’ Union (AWU) are covered by the Agreement.

1. The Applicant seeks to vary Clause 20 - Table 2 of the agreement, due to a genuine administrative error:

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

“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.”

1. Further, the Explanatory Memorandum in support of the Bill provides 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 an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.”

1. The Applicant seeks that the following table be inserted into the Agreement to replace Clause 20 - Table 2 (Table 2), due to a genuine administrative error:

Title	1 January 2023	1 January 2024	1 January 2025
Level 3 Logistics	$64,340.20	$66,913.81	$69,590.36
Level 4 Logistics	$67,786.99	$70,498.47	$73,318.41
Level 5 Logistics	$72,600.53	$75,504.55	$78,524.7

1. The Applicant submits that the administrative error was caused by the agreed 5% wage increase for the Agreement being applied twice to the salaries listed in Table 2. This error effectively resulted in a 10% wage increase to the salaries listed in the previous enterprise agreement, which was unintended and is a clear administrative error.  The 5 employees affected by the administrative error have been contacted by the Applicant with representatives from the AWU and UWU. The Applicant confirms that all 5 employees agree that an administrative error has occurred and support the Application and amendment of Table 2. The representatives from the AWU and UWU have not provided feedback but were copied into the Application.

1. The Applicant submits that this is a clear situation where section 218A of the Act was designed to assist the FWC to vary enterprise agreements which contain an obvious error/s. The Applicant and affected employees support the variation sought to amend an administrative error in the Agreement. As such, the Applicant seeks an order that the Agreement be varied in accordance with Part 2.1, paragraph 2 of the Application and section 218A of the Act.

1. On 30 May 2023, my Chambers contacted the UWU and AWU asking if any party wishes to be heard on the matter, and to advise my Chambers as soon as possible, but by no later than close of business Thursday 1 June 2023. On 31 May 2023, the UWU advised that they are “happy for the Commission to determine this matter on the details provided by the Applicant, and does not seek to be heard on the matter”. The AWU did not provide a response.

1. I am satisfied there was an administrative error and the agreed 5% wage increase for the Agreement was applied twice to the salaries listed in Table 2. This error effectively resulted in a 10% wage increase to the salaries listed in the previous enterprise agreement.

1. For the reasons set out above, I am satisfied that the errors contained in Table 2 are an obvious error within the meaning of s.218A of the Act.

1. I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error by varying Clause 20 - Table 2 of the Agreement.

1. The variation will operate from 16 June 2023.

COMMISSIONER

[1] PR762966.

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