Perth Airport Pty Ltd Trading AS Perth Airport

[2025] FWCA 898

[2025] FWCA 898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 218A—Variation of Enterprise Agreement

Perth Airport Pty Ltd Trading AS Perth Airport

(AG2024/4567)

PERTH AIRPORT ENTERPRISE AGREEMENT 2021

Airport operations
COMMISSIONER LIM	PERTH, 12 MARCH 2025

Application for variation of the Perth Airport Enterprise Agreement 2021.

1. Perth Airport Pty Ltd T/A Perth Airport has made an application under s 218A of the Fair Work Act 2009 (Cth) to vary the Perth Airport Pty Ltd Enterprise Agreement 2021 to correct an error, defect or irregularity in the coverage clause of the Agreement.

1. The Agreement was approved by the Commission on Friday 11 June 2021 and commenced operation on Friday 18 June 2021.[1]

Error or Defect and Amendment

1. The application seeks to vary clause 4 to insert words that clarify that the Agreement covers ‘operational’ employees in the categories of operational shift workers; labourers; technicians; or trade workers. Perth Airport submits that it was the clear intention of the parties that the Agreement was only ever intended to cover operational employees; however, this is not reflected in the wording of clause 4, which could be interpreted to cover ‘non-operational’ employees, including administrative, specialist professional or specialist technical roles.

1. The clause as it appeared in the Agreement at the time of approval is:

“4. Who does this Agreement apply to?

4.1 This Agreement covers:

(a)Perth Airport;

(b)team members employed by Perth Airport in any of the classifications set out in Schedule 1 and Schedule 2 of this Agreement; and

(c)a union or employee organisation where that organisation elects to be covered in accordance with s 183 of the FW Act, and it is noted in the decision approving the agreement, that union or employee organisation.

4.2 The Agreement does not cover:

(a)junior team members; or

(b)apprentices.”

1. Perth Airport asks that the clause be corrected to read as follows:

“4. Who does this Agreement apply to?

4.1 This Agreement covers:

(a)Perth Airport;

(b)team members employed by Perth Airport as operational shift workers, labourers, technicians and trades workers in any of the classifications set out in Schedule 1 and Schedule 2 of this Agreement (excluding those in clause 4.2(c) below); and

(c)a union or employee organisation where that organisation elects to be covered in accordance with s 183 of the FW Act, and it is noted in the decision approving the agreement, that union or employee organisation.

4.2 The Agreement does not cover:

(a)junior team members;

(b)apprentices; or

(c)team members employed in administrative, specialist professional or specialist technical roles, including non-operational supervisory roles.”

1. In support of its application, Perth Airport provided the uncontested witness statement of Aleksandra Cupac, Senior Manager – Human Resources and Development Systems. Ms Cupac’s witness statement relevantly outlines that only operational employees voted on the Agreement, and that all parties have always treated the Agreement as covering only operational employees. I accept Ms Cupac’s evidence.

1. The Transport Workers’ Union of Australia, the United Workers’ Union, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia are covered by the Agreement. All three unions advised that they do not oppose the application.

1. Section 218A of the Act came into effect on Wednesday 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) and 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;

(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. Further the Explanatory Memorandum in support of the Bill provides 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;”

1. Based on the material before me, I am satisfied that the errors outlined in [3] should be corrected by varying the Agreement to reflect the wording of the clause outlined in [5]. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement.

1. The variation will operate from Friday 18 June 2021. An Order giving effect to this Decision will be issued separately.[2]

COMMISSIONER

[1] [2021] FWCA 3236.

[2] PR785158.

Printed by authority of the Commonwealth Government Printer

<AE511732  PR785157>