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

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.

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]

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.

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.

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.

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

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”.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 1686
Decision Date: 8 MAY 2024

CaseChat Overview and Summary

The case involved an application by Motherson Elastomers Pty Ltd for the approval of a variation to the Bendigo Site & UWU/AMWU/ETU Enterprise Agreement 2023, pursuant to section 218A of the Fair Work Act 2009. The application was brought before the Fair Work Commission to correct an obvious error in the original agreement. The Commission was tasked with determining whether the proposed variation was indeed a correction of an obvious error and whether the variation complied with the statutory requirements for such amendments.

The primary legal issue before the Commission was whether the proposed variation constituted a correction of an obvious error within the meaning of section 218A of the Act. Additionally, the Commission had to consider whether the variation met all the requirements for a s.218A variation, including the necessity for minimal disruption to the workplace and the avoidance of any potential detriment to employees.

The Fair Work Commission found that the proposed variation was indeed a correction of an obvious error, as it addressed a clear discrepancy in the original agreement that had the potential to cause confusion and inconsistency in its application. The Commission noted that the error was apparent upon review and that the proposed variation would resolve the issue without introducing any new terms or conditions detrimental to the employees. Furthermore, the Commission confirmed that the variation complied with all statutory requirements, including the need to avoid undue disruption and potential harm to employees. Consequently, the Commission approved the application and authorised the variation as a correction of an obvious error.

The final orders of the Fair Work Commission were that the Motherson Elastomers Pty Ltd - Bendigo Site & UWU/AMWU/ETU Enterprise Agreement 2023 be varied as per the approved variation. The variation was to take effect from the date of the Commission's decision, ensuring that the corrected agreement would be implemented without further delay.

Orders