Mammoth Underground Mine Management Pty Ltd

[2024] FWCA 3638

[2024] FWCA 3638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mammoth Underground Mine Management Pty Ltd

(AG2024/3729)

MAMMOTH UNDERGROUND MINE ENTERPRISE AGREEMENT 2024

Coal industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 18 OCTOBER 2024

Application for approval of the Mammoth Underground Mine Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Mammoth Underground Mine Enterprise Agreement 2024 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

1. On the basis of the material before the Fair Work Commission, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval of the Agreement have been met.

1. The Agreement is approved and, in accordance with section 54 of the Act, will operate from 25 October 2024. The nominal expiry date of the Agreement is 17 October 2027.

Variation application

1. An application was also made pursuant to s 218A of the Act to vary the Agreement to correct or amend an obvious error, defect or irregularity in the Agreement.

1. The Applicant submits that the Agreement contains an obvious error, defect or irregularity, 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 Appendix 1 of the Agreement, which contains example rosters and flat hourly rates, by replacing the amount $69.88 in the first line under the heading “Annual Earnings” with the amount $74.04.

1. The Applicant also seeks to further vary Appendix 1 of the Agreement, by replacing the amount $159,542 in the fifth line under the heading “Annual Earnings” with the amount $175,941.

1. The Applicant submits that there are two obvious errors at Appendix 1 of the Agreement, in that Appendix 1 contains two numbers from an earlier draft version which should have been updated when the example shift length changed during the course of the negotiations, and that the Annual Earnings, Superannuation and Total Annual Remuneration were all calculated using the correct numbers and therefore did not need to be changed.

1. The Applicant further submits that as the numbers were examples only, that the amounts do not apply to any employee and were not used in calculating the totals (which were correct and remain unchanged), that the corrections therefore do not impact on whether the Agreement has been genuinely agreed to by the employees covered by 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[1] (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 correctly update two amounts under the heading “Annual Earnings” of Appendix 1 of the Agreement when creating the final draft of the Agreement. The errors were not identified until after the voting process was completed and are clearly errors of substance and omission. Further, I accept the Applicant’s submissions that the numbers were examples only, that the amounts do not apply to any employee and were not used in calculating the totals (which were correct and remain unchanged), and that the corrections do not impact on whether the Agreement has been genuinely agreed to by the employees covered by the Agreement.

1. I am satisfied that the inadvertent omission of the correct example values under the heading “Annual Earnings” in Appendix 1 are obvious errors that fall within the scope of s 218A(1).

Conclusion

1. For the reasons set out above, I am satisfied that the errors in Appendix 1 of the Agreement are obvious errors 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 an employer covered by the Agreement, thus satisfying the requirements of s 218A(2)(b)(i) of the Act. The variation sought will operate from 25 October 2024. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

[1] [2021] FWCFB 453.

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