Laing O'Rourke Australia Construction Pty Limited (T/A Laing O'Rourke)

[2024] FWCA 1650

[2024] FWCA 1650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Laing O’Rourke Australia Construction Pty Limited (T/A Laing O’Rourke)

(AG2024/1316)

LAING O’ROURKE AUSTRALIA CONSTRUCTION PTY LTD RAIL OPERATIONS (NSW) ENTERPRISE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 3 MAY 2024

Application for approval of the Laing O’Rourke Australia Construction Pty Ltd Rail Operations (NSW) Enterprise Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the Laing O’Rourke Australia Construction Pty Ltd Rail Operations (NSW) Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Laing O’Rourke Australia Construction Pty Limited (T/A Laing O’Rourke). The Agreement is a single enterprise agreement.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

1. The Australian Workers' Union (AWU) and the Australian Rail, Tram and Bus Industry Union (ARTBIU), being the bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations. The AWU and ARTBIU support approval of the Agreement.

1. I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

·           Clause 17.6 – Resignation by an Employee.

However, noting clause 7.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 May 2024. The nominal expiry date of the Agreement is 30 June 2027.

Variation

1. A Form F1 was simultaneously lodged with the Agreement, which sought to vary provisions of the Agreement pursuant to section 218A of the Act (the Form).

1. The Form highlighted errors within the Agreement that had been identified by the Applicant as follows:

1. In clause 36.15, replace the words “Clauses 36.14 to 36.15” with “Clauses 36.15 to 36.16”;

2. In clause 36.16, replace the words “clause 36.14” with “clause 36.15”;

3. In clause 43.2, replace the words “contribution of 9.5%” with “contribution of 11%”;

4. In clause 45.3, replace the words “clause 48.5” with “clause 47.5”;

5. In clause 48.6 (a), replace the “clause 54.3” with “clause 53.3”; and

6. In clause 58.11, add the numbering ‘c)’ prior to the words “The Employee must be paid at least the full amount that would have been payable to the Employee had the Employee taken the leave that the Employee has forgone.”

1. The AWU and ARTBIU were consulted regarding the amendments sought in the Form and do not object to the amendments sought.

1. I am satisfied that s.218A applies to the variations at paragraph 7 of this Decision.

1. 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) Act 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:

“(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. As has been noted in recent decisions of the Commission,[1] 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. The evident purpose of s.218A 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.

1. 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.

1. The Applicant submits that the amendments seek to address typographical and cross-referencing errors, including an incorrect reference in the superannuation clause incorrectly referring to 9.5% and not 11% in line with changes to the relevant legislation.

1. I am satisfied that the errors in the Agreement outlined at paragraph 7 of this Decision are obvious errors. 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. The AWU and ARTBIU have been consulted with on the amendments sought by the Applicant. There are no reasons not to exercise my discretion and good reasons to do so. The errors identified at paragraph 7, will be amended as per the order.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied as follows:

1.In clause 36.15, replace the words “Clauses 36.14 to 36.15” with “Clauses 36.15 to 36.16”;

2.In clause 36.16, replace the words “clause 36.14” with “clause 36.15”;

3.In clause 43.2, replace the words “contribution of 9.5%” with “contribution of 11%”;

4.In clause 45.3, replace the words “clause 48.5” with “clause 47.5”;

5.In clause 48.6 (a), replace the “clause 54.3” with “clause 53.3”; and

6.In clause 58.11, add the numbering ‘c)’ prior to the words “The Employee must be paid at least the full amount that would have been payable to the Employee had the Employee taken the leave that the Employee has forgone.”

1. The variations pursuant to s.218A above will operate from 10 May 2024.

1. The Applicant has simultaneously submitted a copy of the Agreement with the variations listed at paragraph 7. The Agreement, as varied, will be published with this Decision.

DEPUTY PRESIDENT

[1] 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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