Motherson Elastomers Pty Ltd

[2024] FWCA 1686

[2024] FWCA 1686

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Motherson Elastomers Pty Ltd

(AG2024/1271)

MOTHERSON ELASTOMERS PTY LTD - BENDIGO SITE & UWU/AMWU/ETU ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT BELL	MELBOURNE, 8 MAY 2024

Application for approval of the Motherson Elastomers Pty Ltd - Bendigo Site & UWU/AMWU/ETU Enterprise Agreement 2023 - s.218A variation to correct or amend obvious error.

Approval

1. An application has been made for approval of an enterprise agreement known as the Motherson Elastomers Pty Ltd - Bendigo Site & UWU/AMWU/ETU Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Motherson Elastomers Pty Ltd. The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 11 October 2023 and the Agreement was made on 8 April 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and United Workers’ Union (UWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

1. The Agreement was approved on 8 May 2024 and, in accordance with s.54 of the Act, will operate from 15 May 2024. The nominal expiry date of the Agreement is 31 May 2026.

Variation

1. The Agreement lodged contained an error in clause 1 of the Agreement (title clause). It provides that the Agreement will be known as the “Motherson Elastomers Pty Ltd - Bendigo Site & UWU/AMWU/ETU Enterprise Agreement 2019”. The Agreement title is otherwise referred to throughout the Agreement as “Motherson Elastomers Pty Ltd - Bendigo Site & UWU/AMWU/ETU Enterprise Agreement 2023”.

1. Correspondence was sent to the parties by my Chambers to clarify that the reference to ‘2019’ in clause 1 appeared to be a mistake and was intended to be a reference to ‘2023’. The parties were advised that I intended to amend the clause on my own initiative pursuant to s.218A of the Act as an ‘obvious error’. The parties were provided an opportunity to provide submissions if they disagreed with this proposed course of action. No objection was received to me amending the Agreement pursuant to s.218A.

1. Section 218A, which came into effect on 7 December 2022, is 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; or
(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. As has been noted in recent decisions[2] of the Commission, s.218A of the Act is akin to the slip rule found in s.602 of the Act which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. Its evident purpose is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

1. 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 finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

1. I am satisfied that the reference to ‘2019’ in clause 1 of the Agreement is an obvious error. While section 218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied that the amendment should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the error is readily identified, as is the correction needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The reference to ‘2019’ in clause 1 of the Agreement will be amended to read ‘2023’, as ordered below.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error as follows:

1. By deleting the reference to ‘2019’ in clause 1 of the Agreement, and replacing it with ‘2023’.

2. The variation will operate from 8 May 2024.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

[2] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

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