Mildura Fruit Juices Aust Pty Ltd T/A Mildura Fruit Juices
[2023] FWCA 1772
•16 JUNE 2023
| [2023] FWCA 1772 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Mildura Fruit Juices Aust Pty Ltd T/A Mildura Fruit Juices
(AG2023/1174)
MFJA ENTERPRISE AGREEMENT 2021
| Food, beverages and tobacco manufacturing industry | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 16 JUNE 2023 |
Application to amend the MFJA Enterprise Agreement 2021 – section 218A variation to correct or amend an obvious error.
Mildura Fruit Juices Aust Pty Ltd T/A Mildura Fruit Juices has applied pursuant to s 218A of the Fair Work Act 2009 (Cth) (Act) to vary the MFJA Enterprise Agreement 2021[1] (Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Commission on 29 April 2022.[2] The Agreement covers and is binding upon Mildura Fruit Juices, its non-salaried employees employed in classifications covered by the Food, Beverage and Tobacco Manufacturing Award 2020, the Manufacturing and Associated Industries and Occupation Award 2020 and the Clerks – Private Sector Award 2020, and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU).[3]
Clause 5 of the Agreement provides that the nominal expiry date of the Agreement is 30 November 2023.[4]
The application seeks that the Agreement be varied to correct a typographical error in the Agreement with respect to the nominal expiry date.
Statutory framework
Section 218A of the Act provides 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; or
(iii) an employee organisation covered by the agreement.
(2) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.
Section 218A was inserted into the Act by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Amendment Act), which received royal assent on 6 December 2022. Section 218A appears within Part 17 of Schedule 1, which is concerned with dealing with errors in enterprise agreements.[5] Part 17 commenced operation on 7 December 2022.
The Explanatory Memorandum to the Amendment Act describes Part 17 as removing unnecessary complexity in the agreement-making process. It seeks to achieve this by simplifying the process for correcting any obvious errors, defects or irregularities in enterprise agreements and providing 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 Commission. The explanatory memorandum provides an example for the use of the power to correct or amend typographical errors, with the Commission being able to decide how corrections are made. Section 218A is said to “compliment” the Commission’s existing power in s 217 of the Act to vary an enterprise agreement to remove ambiguity or uncertainty.[6]
Section 218A of the Act is intended to address a regulatory gap, as the slip rule found in s 602 of the Act enables the correction of Commission decisions but not enterprise agreements.[7]
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 identification of such an error, defect or irregularity the Commission, at its discretion, may vary the enterprise agreement to correct or amend the identified obvious error, defect or irregularity. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.
The application
Mildura Fruit Juices contends that clause 5 of the Agreement contains a typographical error with respect to the nominal expiry date of the Agreement. Clause 5 of the Agreement provides as follows:
5. DATE AND PERIOD OF OPERATION
This agreement shall operate, from 7 days after the agreement is approved by the Fair Work Commission, and shall remain in force until 30th November 2023.
It is submitted that clause 5 does not accurately reflect the nominal expiry date agreed to during negotiations for the Agreement. It is said that the parties agreed that the nominal expiry date of the Agreement would be 30 November 2024. The application seeks that the Agreement be varied by removing from clause 5 the reference to “2023” and replacing it with “2024.”[8] No other changes are sought.
In support of its position that the reference in clause 5 to “2023” is a typographical error, Mildura Fruit Juices relies upon two documents which were in existence before the Agreement was made.
The first is referred to as a “proposal document” for the Agreement, which was prepared by Mildura Fruit Juices and provided to the relevant employees and the AMWU on 10 March 2022. The proposal states that “currently we have agreed to a 2.5% increase each year for 3 years.” Mildura Fruit Juices submits that this changed to a 3% increase each year for 3 years on or around 17 March 2022.[9] I am satisfied the proposal document was shared with employees on 10 March 2022.
The second document is referred to as an “explanatory document” and is titled “Table of changes.”[10] Mildura Fruit Juices submits that it was provided to the relevant employees during the access period for the Agreement. With respect to clause 5 of the Agreement, the explanatory document specifies under a heading titled “Details of changes” the words “To reflect a 3 year agreement.” I am satisfied the explanatory document was provided to employees in the access period.
Mildura Fruit Juices refers to clause 9 of the Agreement which it contends confirms the intention that the Agreement was to operate for a three-year term.[11]
Clause 9 of the Agreement is titled “Wage increases, time frame and conditions, education and information sharing.” It provides that wage increases are as set out in Table A which provides as follows:
Pay increases will be effective 1st December are set out in Table A (i), are 3% in December 2021, 3% in December 2022 and 3% in December 2023.
Table A (i) Pay Increases
1st December 2021 3%
1st December 2022 3%
1st December 2023 3%
Having regard to each of these matters, Mildura Fruit Juices submits that clause 9 of the Agreement and the wage rates to which it refers “reflect the intended expiry date of the Agreement outlined in the Explanatory Document and indicate that errors occurred during the drafting process. The Agreement provides for 3% pay increases, effective 1 December 2021, 1 December 2022 and 1 December 2023.”
The AMWU concurs with the matters raised by Mildura Fruit Juices as detailed above, and supports the making of the proposed orders.[12]
Consideration
The material before the Commission demonstrates that an outcome of the bargaining process was a three-year agreement, with three 3% pay increases to be paid to the relevant employees by Mildura Fruit Juices during its nominal term. This is consistent with the proposal document and the explanatory document which I am satisfied were provided to employees before the Agreement was made. The latest of those wage increases is to be made on 1 December 2023. Significantly, this post-dates the nominal expiry date of the Agreement identified in clause 5.
On an objective consideration of these matters, together with all of the material before the Commission, I am satisfied that an obvious error exists. The error is a typographical error in clause 5 of the Agreement which refers to “2023” rather than “2024” as intended.
The exercise of the Commission’s discretion is directed to “correct or amend” the obvious error identified. I consider the obvious error identified is of a kind that may be corrected by varying the Agreement to change the reference to “2023” in clause 5 to “2024.” It is appropriate to do so having regard to the fact that (a) the obvious error is typographical, (b) the correction sought will reflect the outcome reached in bargaining for the Agreement, (c) the AMWU, being the only union covered by the Agreement, supports the proposed orders, and (d) there is no opposition to the application. I have identified no reasons which tell against the exercise of my discretion.
I consider it appropriate to correct clause 5 of the Agreement by deleting “2023” and replacing it with “2024” so that the nominal expiry date of the Agreement will be “30 November 2024.”
Order and disposition
Pursuant to s 218A of the Act, I order that the MFJA Enterprise Agreement 2021 be amended to correct an obvious error as follows:
1.In clause 5, delete “2023”and in its place insert “2024.”
2.The variation will operate from 16 June 2023.
DEPUTY PRESIDENT
[1] AE515821
[2] [2022] FWCA 147
[3] Agreement, clauses 4 and 6; [2022] FWCA 147 at [2]
[4] Agreement, clause 5; [2022] FWCA 147 at [4]
[5] Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022, Part 17, Schedule 1
[6] Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs Better Pay) Bill 2022 at [772]-[779]
[7] See, Advantaged Care Pty Ltd v Health Services Union[2021] FWCFB 453
[8] Form F1 application dated 21 April 2023 at [2.1]
[9] Form F1 application at [2.2(3)]; MFJA EA Proposal Final at p.1
[10] Form F1 application at [2.2(4)]; Table of changes
[11] Form F1 application at [2.2(5)]
[12] Email from the AMWU to Chambers dated 1 May 2023
Printed by authority of the Commonwealth Government Printer
<AE515821 PR763152>
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