Laing O’Rourke Australia Construction Pty Ltd

[2024] FWCA 490

[2024] FWCA 490

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Laing O’Rourke Australia Construction Pty Ltd

(AG2023/5414)

LAING O’ROURKE AUSTRALIA CONSTRUCTION PTY LTD VICTORIAN RAIL MAINTENANCE AND RENEWALS ENTERPRISE AGREEMENT 2022 - 2026

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 6 FEBRUARY 2024

Application for approval of the Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Maintenance and Renewals Enterprise Agreement 2022 – 2026 - s.218A variation to correct or amend obvious error, defect or irregularity.

Approval

1. An application has been made for approval of an enterprise agreement known as the Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Maintenance and Renewals Enterprise Agreement 2022 - 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Laing O’Rourke Australia Construction Pty Ltd. The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 6 February 2023 and the Agreement was made on 20 December 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]

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.

1. The Australian Rail, Tram and Bus Industry Union (ARTBIU), 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.

1. The Agreement was approved on 6 February 2024 and, in accordance with s.54 of the Act, will operate from 13 February 2024. The nominal expiry date of the Agreement is 30 June 2027.

Variation

1. The application for approval of the Agreement was accompanied by a Form F1 application seeking to vary the proposed Agreement pursuant to s.218A of the Act, to correct obvious errors and/or irregularities in the proposed Agreement. The variations sought are set out in detail in the variation application. The ARTBIU confirmed they agreed with the proposed changes

1. 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.”

1. 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.

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 first variation sought seeks to correct the years referenced in the Agreement title.

1. The second variation is to remove duplication in the shift work clause (clause 8.8), by removing clause 8.8.2, including the duplicated shiftwork table. The application discloses that a new shiftwork table was inserted after clause 8.8.1(d) of the Agreement, removing the need for clause 8.8.2, which was left in the final draft of the Agreement in error and the change to this clause is needed to correct the obvious error whereby shift penalties are duplicated.

1. The final variation sought is to insert at the beginning of clause 8.4(e) the words “When not on Distant Projects,”. Clause 8.4 is titled “Start and Finish Locations on Distant Projects”. Clause 8.4(a) states shift times commence at the place of “accommodation” (i.e. not the jobsite). However, by contrast, clause 8.4(e) states employees shall be ready to work at the rostered start time at the “jobsite”. Additional words were intended in clause 8.4(e) to clarify that this clause now applies only when employees are not engaged on Distant Projects, however this was omitted in the final draft in error.

1. I am satisfied that the variations sought are obvious errors, defects or irregularities (the errors). While I am satisfied that the errors are obvious on the face of the document, the explanation by the employer in its application confirms such matters.

1. 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/defects/irregularities 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 Agreement will be amended as per the order below. I have also amended the title of the Agreement in this decision to reflect the amendment made to the enterprise agreement.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error, defect and irregularity as follows:

1. By deleting the reference to “2023 – 2027” where it appears on the title page of the Agreement, and replacing it with “2022 – 2026”.

2. By deleting the reference to “2023 – 2027” where it appears in title clause 1.1 of the Agreement, and replacing it with “2022 – 2026”.

3. By inserting at the beginning of clause 8.4(e) the words “When not on Distant Projects,”.

4. By deleting clause 8.8.2 (including the table) and renumbering existing clause 8.8.3 as 8.8.2.”

1. The variation will operate from 6 February 2024. 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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