MSF Sugar Pty Ltd

[2024] FWCA 3421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - Variation of enterprise agreements to correct or amend errors, defects or irregularities

s.602 - Application to correct obvious error(s) etc. in relation to FWC’s decision

MSF Sugar Pty Ltd

(ADM2024/7)

SOUTH JOHNSTONE MILL ENTERPRISE BARGAINING AGREEMENT 2024

Sugar industry
COMMISSIONER MCKINNON	SYDNEY, 30 SEPTEMBER 2024

Application to correct obvious error(s) etc. in relation to FWC’s decision

MSF Sugar Pty Ltd has applied under s.602 of the Fair Work Act 2009 (the Act) to correct and amend obvious errors in relation to allowances in the South Johnstone Mill Enterprise Bargaining Agreement 2024[1] (the Agreement). The application cannot be granted under s.602 because of the effect of s.603(3)(b), which relevantly provides that the Commission must not vary a decision to approve an enterprise agreement.

Despite s.602, the Commission can vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form) under s.218A of the Act. Such variations can be made either on application or on the Commission’s initiative. In circumstances where the changes are sought by MSF Sugar Pty Ltd and are for the benefit of employees, I consider it appropriate to exercise my initiative to vary the Agreement in the terms sought by MSF Sugar Pty Ltd.

The following clauses of the Agreement are varied:

In clause 5.8.1(c) (general disability allowance), the amount “$0.81” is replaced with the amount “$0.95”.
In clause 5.8.8(e) the word “not” is removed.
In clause 5.8.11 (emergency response allowance), the reference to “clause 5.8.17” is replaced with a reference to clause “5.8.13”.
In clause 5.8.13 (first aid duty), the amount “$16.18” is replaced with the amount “$19.04”.

The variation will operate from 5 July 2024. A consolidated version of the Agreement, incorporating the variations, is attached to this decision.

COMMISSIONER

[1] AE525240; [2024] FWCA 2413.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

MSF Sugar Pty Ltd applied to the Fair Work Commission to correct and amend obvious errors in the South Johnstone Mill Enterprise Bargaining Agreement 2024. The applicant sought to rectify errors in allowances specified within the agreement. The Commission found that the application could not be granted under section 602 of the Fair Work Act 2009, which pertains to correcting decisions, as the section restricts the Commission from varying a decision to approve an enterprise agreement. However, section 218A of the Act empowers the Commission to vary an enterprise agreement to correct or amend obvious errors, defects or irregularities. Given the errors were for the benefit of employees, the Commission decided to exercise its initiative to vary the agreement as requested by MSF Sugar Pty Ltd.

The legal issues before the Commission involved interpreting sections 602 and 218A of the Fair Work Act 2009 and determining whether the Commission had the authority to amend the enterprise agreement under the circumstances presented. The primary question was whether the Commission could correct the errors despite the restriction in section 602, and if so, whether it was appropriate to do so under section 218A. The Commission concluded that while section 602 did not allow for the correction of the errors, section 218A did provide the necessary authority. The Court determined that exercising its initiative to correct the errors was appropriate given the benefit to the employees.

The Commission varied the clauses of the South Johnstone Mill Enterprise Bargaining Agreement 2024 to correct the errors. Clause 5.8.1(c) was amended to change the general disability allowance from $0.81 to $0.95, the word "not" was removed from clause 5.8.8(e), and the reference to clause 5.8.17 in clause 5.8.11 was replaced with a reference to clause 5.8.13. Additionally, the amount in clause 5.8.13 was amended from $16.18 to $19.04. These changes were effective from 5 July 2024. A consolidated version of the amended agreement was attached to the decision.

The final orders included the specific variations to the clauses as outlined above, ensuring the corrected allowances were implemented as of the specified date. This decision was intended to rectify the errors in the enterprise agreement and ensure fair treatment of employees in the sugar industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established