Leidos Nas Pty Ltd T/A Leidos Airborne Solutions Australia
[2024] FWCA 1659
•6 MAY 2024
| [2024] FWCA 1659 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Leidos Nas Pty Ltd T/A Leidos Airborne Solutions Australia
(AG2024/1257)
LEIDOS AUSTRALIA AIRBOURNE SOLUTIONS ENGINEERING ENTERPRISE AGREEMENT 2023-2027
| Airline operations | |
| COMMISSIONER LEE | MELBOURNE, 6 MAY 2024 |
Application for variation of the Leidos Australia Airbourne Solutions Engineering Enterprise Agreement 2023-2027
On 15 April 2024, Leidos Nas Pty Ltd T/A Leidos Airborne Solutions Australia (the Applicant) made an application pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Leidos Australia Airbourne Solutions Engineering Enterprise Agreement 2023-2027 (Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Fair Work Commission on 22 November 2024 and commenced operation on 29 November 2023. The nominal expiry date of the Agreement is 30 June 2027.
The Australian Licensed Aircraft Engineers Association is covered by the Agreement.
At question 2.1 of the Applicants Form F1, the Applicant seeks to vary the Agreement to correct errors, defects or irregularities in the Agreement as follows:
(a)Schedules 1-6 of the Agreement are deleted and replaced with the amended Schedules 1-6 as set out in Annexure A.
At question 2.2 of the Form F1, the Applicant outlined the grounds for the order sought as follows:
Between 28 January 2023 and 6 October 2023, the Applicant (Leidos NAS) bargained for the Agreement with its employees and the Australian Licensed Aircraft Engineers Association (ALAEA).
On 25 September 2023, Leidos NAS emailed employees a copy of the proposed Agreement which would form the basis of what they would be asked to vote upon (Proposed Agreement). A copy of the Proposed Agreement is attached and marked “Annexure B”.
Relevantly, the Proposed Agreement contained the following details in the Schedules:
(a) Schedule 1.1: salary rate for employees classified as “Structures Certificate IV” employees; and
(b) Schedule 4: Senior Base Engineers Aircraft payment (per overnighting tail) of $847.27 from 30 June 2021 and $873.69 from 1 July 2021.In addition to the above, each of the Schedules to the Proposed Agreement contained a
column for wage increases across the life of the Proposed Agreement, consistent with the terms of clause 5.2 of the Proposed Agreement, however, the cells associated with those increases in the tables were blank.
The Proposed Agreement was recirculated to all employees on 6 October 2023.
The employees voted to approve the Proposed Agreement between 6 and 13 October 2023, with a majority of employees voting ‘yes’.
On 27 October 2023, Leidos NAS made an Application to the Fair Work Commission for approval of the Enterprise Agreement, being matter AG2023/3941 (Approval Application). The Approval Application was allocated to Commissioner Lee for determination.
Attached to the Approval Application was a signed copy of the Enterprise Agreement. Attached and marked “Annexure C” is a copy of the Agreement attached to the Approval Application.
The Agreement was approved on 22 November 2023 and subsequently came into operation on 29 November 2023.
10.On 29 January 2024, the ALAEA notified Leidos NAS that it had identified that that the version of the Enterprise Agreement approved by the Commission did not contain the figures for the Senior Base Engineers Aircraft payment in Schedule 4.
11.On further review, Leidos NAS also identified that the Schedule 1.1 of the Enterprise Agreement did not contain the Structures Certificate IV salary rate or the blank columns for future wage increases (which are subject to future CPI increases and accordingly cannot be determined in advance).
12.Upon closer consideration, each of the Schedules in the version of Enterprise Agreement
approved by the Commission are from the enterprise agreement which preceded the new
Enterprise Agreement. The effect of this is that they do not include new classifications and allowances agreed between the parties, in particular:
(a) the Senior Base Engineers Aircraft payment is not included; and
(b) the Structures Certificate IV salary rate is not included.13.The error in the Schedules was not identified by any of the bargaining parties at the time that the time the Enterprise Agreement was submitted for approval by the Commission.
14.The inclusion of the incorrect Schedules does not have the effect of changing the entitlements payable under the Agreement. This is because the Schedules simply set out the rates and allowances that were payable under the preceding enterprise agreement and added the updated rates and allowances payable under the Proposed Agreement, applying the increases prescribed at clause 5.2 of the substantive Agreement. In this sense, the Schedules are analogous to the “Summary of Hourly Rates of Pay” schedules that the Commission has inserted into modern awards—the schedules do not create entitlements by themselves, but rather summarise the entitlements created under the substantive instrument to assist employees to understand the application of them.
15.The accidental deletion of those items was a clear error, and, in Leidos NAS’ submission, this is an obvious omission which enlivens the Commission’s powers under s.218A of the FW Act to correct the error.
***
21.In the present case, the Leidos NAS submits the omission of the Structures Certificate IV salary rates, the Senior Base Engineers Aircraft payment and the blank cells representing future wage increases arose whilst preparing the Agreement for lodgement, and accordingly, amounts to an obvious error within the meaning of s.218A(1) of the FW Act. Correcting the error in the manner sought will ensure that the terms of the Proposed Agreement voted on by the employees and the Agreement are the same.
22.The ALAEA is aware of and supports the making of this Application to the Commission.
23.On this basis, Leidos NAS respectfully requests the Commission grants the Section 218A Application in the terms sought.
24.This Application is made with the consent and the support of the ALAEA.
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.”
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.”
Considering s.218A(2)(b)(i) of the Act, the Fair Work Commission may vary an enterprise agreement on application by one or more of the employers covered by the agreement.
On 29 April 2024, parties to the Agreement were invited to advise the Commission if they wished to be heard on the matter by no later than close of business Friday, 3 May 2024.
No correspondence was received by my Chambers.
I am satisfied that the errors outlined at [4] should be corrected by varying the Agreement. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement.
I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct the errors.
The variation will operate from 6 May 2024.
COMMISSIONER
Annexure A
[1] PR774536.
Printed by authority of the Commonwealth Government Printer
<AE522412 PR774535>
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