Lineage Aus Trs Pty Limited

[2025] FWCA 1701

[2025] FWCA 1701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Lineage Aus Trs Pty Limited

(AG2025/1401)

LINEAGE AUS TRS PTY LTD LAVERTON ENTERPRISE AGREEMENT 2024

Storage services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 21 MAY 2025

Application for variation of the Lineage AUS TRS Pty Ltd Laverton Enterprise Agreement 2024

Introduction

1. On 29 January 2025, Commissioner Perica approved the Lineage AUS TRS Pty Ltd Laverton Enterprise Agreement 2024.[1]

1. On 9 May 2025, an application was made by the Lineage AUS TRS Pty Ltd (Applicant) pursuant to section 218A of the Act to vary the Agreement to correct or amend obvious errors, defects or irregularities in the Agreement.

1. The Applicant submits that the Agreement contains obvious errors, defects or irregularities, the details of which are set out and considered below.

Statutory Provisions

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) Bill 2022, provides for the variation of an enterprise agreement to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:

   (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. The Explanatory Memorandum (EM) that supports the above-referred Bill relevantly states 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.

Consideration

1. The Applicant seeks to vary the Agreement as follows:

·     So that Annexure A, which was not published with the Agreement, be included in the Agreement.

·     Amend the table of contents at pages 2-3 of the Agreement to accurately cross reference the page numbers of the clauses in the Agreement.

·     At clause 1.6 of the Agreement, amend the definition for “Nominal hours worked” so that the duplicate numbering in the definition is deleted.

·     At clause 2.2.2 of the Agreement, delete the subclause numbering which appears at the penultimate and last paragraphs of the clause.

·     At clause 3.1 of the Agreement, delete the duplicated instance of the word “the” in the second line of the note that is located immediately below the last wage table in clause 3.1.

·     At clause 8.4.2, the final word of the clause, “time”, and the full stop thereafter be deleted.

·     The page numbering at page 29 of the Agreement is amended to read “Page 29 | 29”.

1. The Applicant submits that the errors and required rectifications are obvious and do not involve any matters of substance, and that the removal of obvious errors will assist in the legibility of the Agreement.

1. The Applicant further submits that rectification of the error regarding the failure to include Annexure A will give effect to clause 7.10 of the Agreement.

1. As Deputy President Masson sets out in Doctors in Training (Victorian Public Health   Sector) (AMA Victoria/ASMOF) (Single   Interest   Employers) Enterprise Agreement 2022-2026 [2022] FWCA 4390:

[9]       It is apparent from the text of s. 218A and the supporting EM that s. 218A is intended to overcome the statutory limitation imposed by s.602 of the Act that was most recently identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union[2] (Advantaged Care). In that decision the Full Bench confirmed that the Commission could not amend the text of an agreement to correct an obvious error, defect or irregularity pursuant to s. 602 of the Act and that other provisions within the Act, ss. 210 or 217, might be used to rectify such error, defect or irregularity.

[10]     There are limitations to the use of ss. 210 and 217 of the Act in varying an agreement to address an obvious error, defect or irregularity.  For example, it may be considered costly and impractical to conduct a ballot of employees for the purpose of obtaining approval for the variation of an agreement pursuant to s. 210 of the Act, where the variation sought is not substantive. Section 217 might also not be amenable to correcting an obvious error, defect or irregularity where the error does not create uncertainty or ambiguity.  It is accepted that s. 218A confers an additional discretion for the Commission to amend an error, defect, or irregularity in an agreement, be that in form or substance.

1. In the present case the contended errors are that of a failure to include Annexure A in the final signed copy of the Agreement, a failure to correctly cross-reference clauses in the table of contents, a failure to correctly number the paragraph numbering in the definition of “Nominal hours worked”, an inadvertent numbering of paragraphs at clause 2.2.2 which did not require any numbering, a failure to delete a duplicated word at clause 3.1, the inclusion of the word “time” as a single word sentence at the end of clause 8.4.2, and a failure to correctly number the total pages of the Agreement. The errors are clearly obvious errors or irregularities in the Agreement.

1. The views of the United Workers’ Union (UWU) were sought in relation to the variation application. The UWU consents to the application and orders sought by the Applicant.

Conclusion

1. For the reasons set out above, 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 employer covered by the Agreement, thus satisfying the requirements of s 218A(2)(b)(i) of the Act. The variation sought will operate from 21 May 2025. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

[1] [2025] FWCA 329

[2] [2021] FWCFB 453.

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