MRAEL Limited Group T/A MRAEL

[2023] FWCA 1761

[2023] FWCA 1761

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

MRAEL Limited Group T/A MRAEL

(AG2023/1910)

THE MRAEL COAL TERMINALS ENTERPRISE AGREEMENT 2022

Industries not otherwise assigned
COMMISSIONER JOHNS	MELBOURNE, 16 JUNE 2023

Application for variation of the MRAEL Coal Terminals Enterprise Agreement 2022

1. MRAEL Limited Group T/A MRAEL (Applicant) has made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the MRAEL Coal Terminals Enterprise Agreement 2022 (Agreement) to correct or amend an error, defect or irregularity in the Agreement (Application).

1. The Agreement was approved by the Fair Work Commission (Commission) on 26 May 2023 and commenced operation on 2 June 2023.[1] The Applicant is the employer covered by the Agreement.[2] The AMWU, CEPU and CFMMEU are covered by the Agreement. The Applicant submits that the Agreement contains a typographical error.

1. The Applicant submitted that all three Unions covered by the Agreement support the requested amendment.

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 enterprise agreements 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 clause 16.10 so that the allowance is corrected from $11.90 to $15.59.

1. The Applicant submits that the current clause 16.10 does not reflect the written clarification provided to employees on 21 April 2023 which noted $15.59. The Applicant submits that therefore the Agreement contains a drafting error of the kind contemplated by s.218A of the Act, as the allowance has been transposed incorrectly.

1. 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[3] (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.

1. 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 error is that of incorrectly transposing the allowance during the Agreement drafting process.

1. The contended error which was not identified until after the Agreement was approved is arguably an error of substance. I am satisfied that the typographical error significantly disadvantages employees in respect of their allowance. While such disadvantage is not in my view a pre-requisite for the exercise of the Commission’s discretion to vary the Agreement, it is a matter I have taken into account in the present matter.

Conclusion

1. For the reasons set out above, I am satisfied that the error contained in clause 16.10 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 16 June 2023. An order giving effect to this decision will be separately issued [PR763113].

COMMISSIONER

[1] [2023] FWCA 1511.

[2] Agreement, clause 2.

[3] [2021] FWCFB 453

Printed by authority of the Commonwealth Government Printer

<AE520133  PR763127>