Malanda Dairyfoods Pty Ltd
[2023] FWCA 2242
•26 JULY 2023
| [2023] FWCA 2242 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Malanda Dairyfoods Pty Ltd
(AG2023/2336)
BEGA MALANDA PRODUCTION, LOGISTICS & LABORATORY ENTERPRISE
Agreement 2022
| Food, beverages and tobacco manufacturing industry | |
| COMMISSIONER HUNT | BRISBANE, 26 JULY 2023 |
Application for variation of the Bega Malanda Production, Logistics & Laboratory Enterprise Agreement 2022
Malanda Dairyfoods Pty Ltd (the Employer) has made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the Bega Malanda Production, Logistics & Laboratory Enterprise Agreement 2022 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Commission on 11 July 2023 and commenced operation on 18 July 2023.[1] The Australian Workers’ Union (the AWU) is an employee organisation covered by the Agreement.
The Employer submitted that the Agreement contains an obvious error in paragraph 4.3(b) of Appendix 3 where the subparagraph should be read: “if the Team Member receives more than one written warning during the bonus period.” The Employer noted that the word “Member” was omitted from the Agreement made with employees.
In support of its application, the Employer advised that paragraph (b)(ii) of Appendix 1 of The Lion Dairy & Drinks Mandala Enterprise Agreement 2019, that being the immediate predecessor agreement, states that “if the employee receives a ‘Final Written Warning’ during the bonus period” (emphasis added by the Employer). It was verbally discussed during bargaining with the AWU that the Employer wished to change the above clause to refer to a “written warning” instead of a “final written warning”. No other substantive changes were to be made.
The Employer further submitted that on page five of the access period letter dated 17 May 2023, it explained that the Employer has changed “employee” to “Team Member” throughout the proposed agreement to describe employees who are covered by the Agreement. This explanation refers to the definition of “Team Member” in clause 1.1. On page four of the Access Period letter, it explained, in relation to Appendix 3 of the Agreement, that “A Team Member will not be eligible for a bonus if they receive more than one written warning during the bonus period, instead of a first and final warning”.
For the reasons outlined above, the Employer submitted that this correction is an obvious error, defect or irregularity under s.218A(1) of the Act and this amendment will not disadvantage the employees covered by the Agreement.
The AWU confirmed in written communication that it did not object to the application.
Relevant Legislation
Section 218A came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. It provides 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;
(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.”
Consideration
The Employer seeks to vary paragraph 4.3(b) of Appendix 3, to correct the typographical error to read as follows: “(b) if the Team Member receives more than one written warning during the bonus period.”
In the recent decision of Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026,[2] Deputy President Masson observed as follows:
“[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 (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.201 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.” (footnotes omitted).
In the present case, the contended error is that of omitting to include the word “Member”. The contended error which was not identified until after the Agreement was made is arguably an error of substance and omission. A demonstrated error of omission would, in my view, fall within the scope of s.218A(1).
Having regard to the above, I am satisfied that the error in omitting the word “Member” was an error.
Conclusion
For the reasons set out above, I am satisfied that the error contained in paragraph 4.3(b) of Appendix 3 is an error 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 the Employer covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(i) of the Act. The variation sought will operate from 18 July 2023. An order giving effect to this decision will be issued separately.
COMMISSIONER
[1] [2023] FWCA 2124.
[2] [2022] FWCA 4390.
Printed by authority of the Commonwealth Government Printer
<AE520715 PR764396>
0
0
0