Paper Australia Pty Ltd

[2024] FWCA 2285

[2024] FWCA 2285

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Paper Australia Pty Ltd

(AG2024/2161)

OPAL AUSTRALIAN PAPER MARYVALE MILL MECHANICAL MAINTENANCE & ENGINEERING STORE ENTERPRISE AGREEMENT 2024

Timber and paper products industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 20 JUNE 2024

Application for variation of the Opal Australian Paper Maryvale Mill Mechanical Maintenance & Engineering Store Enterprise Agreement 2024

1. Paper Australia Pty Ltd is covered by the Opal Australian Paper Maryvale Mill Mechanical Maintenance & Engineering Store Enterprise Agreement 2024 (Agreement) and applies under s 218A of the Fair Work Act 2009 (Cth) (Act) for the Commission to vary the Agreement to correct the rates of pay appearing for the P8 and P7 classifications in Appendix C of the Agreement.

1. Further to my reasons given in transcript on 20 June 2024, I am satisfied that Appendix C of the Agreement is attended by an obvious error in the rates of pay for the P8 and P7 classifications.

1. Section 218A of the Act provides:

“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;

(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. Section 218A of the Act is akin to the slip rule found in s 602 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. Section 218A was inserted by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (Amendment Act), which received royal assent on 6 December 2022 and commenced in part the following day. Part 17 of Schedule 1 of the Amendment Act commenced on 7 December 2022. In the result, s 218A of the Act commenced on that day. 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. The error in the rates of pay appearing for the P8 and P7 classifications are, having regard to witness statement of Zoe Rich, the applicant’s Workplace Relations Advisor, obvious with the weekly rate and overtime hourly rate columns showing incorrect numerical values.  So much is also clear when regard is had to clause 13 of the Agreement, which sets out the agreed wage increases.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union supported the application having regard to the applicant’s undertaking recording in the transcript that it will not seek to recover any overpayments from affected persons at the P8 classification if the variation takes effect retrospectively, as did the United Workers’ Union.  There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement.  I propose to amend the error identified above and order as such below.  I am satisfied that the error in Appendix C of the Agreement should be corrected by varying the Agreement.  The variation should take effect on the day the Agreement commenced operation.

Order

1. Pursuant to s 218A of the Act and noting the applicant’s undertaking, I order that the Agreement be varied to correct an obvious error by:

1. removing the weekly rate numerical values “1992.82”, “2052.60”, “2114.18” found in the P8 classification weekly rate column of Appendix C of the Agreement and replacing them with “1908.20”, “1965.45” and “2024.41” respectively;

1. removing the overtime hourly rate numerical values “55.36”, “57.02” and “58.73” found in the P8 classification overtime hourly rate column of Appendix C of the Agreement and replacing them with “53.01”, “54.60” and “56.23” respectively;

1. removing the weekly rate numerical values “1992.45”, “2052.23” and “2113.79” found in the P7 classification weekly rate column of Appendix C of the Agreement and replacing them with “1992.82”, “2052.60” and “2114.18” respectively; and

1. removing the overtime hourly rate numerical values “55.35”, “57.01” and “58.72” found in the P7 classification overtime hourly rate column of Appendix C of the Agreement and replacing them with “55.36”, “57.02” and “58.73” respectively.

1. The variation operates from 17 May 2024.

DEPUTY PRESIDENT

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Annexure