Plummers Project Services Pty Ltd
[2023] FWC 2997
•16 NOVEMBER 2023
| [2023] FWC 2997 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Plummers Project Services Pty Ltd
(AG2023/4094)
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 16 NOVEMBER 2023 |
Application for variation of the Plummers Project Services Pty Ltd Enterprise Agreement 2022
Plummers Project Services Pty Ltd (the Applicant) has made an application pursuant to s 218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Plummers Project Services Pty Ltd Enterprise Agreement 2022 (the Agreement)[1] to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Commission on 11 July 2022 and commenced operation on 18 July 2022.[2] The Applicant, which purports to be the employer covered by the Agreement, submits that the Agreement contains an error, the details of which are set out and considered below. The Applicant was content for the matter to be determined on the basis of the material filed. It is noted that no employee organisation is covered by the Agreement.
Briefly stated, the error that is said to have arisen concerns the Australian Business Number (ABN) that is attributed to the employer covered by the Agreement. It is uncontroversial that Plummers Project Services Pty Ltd applied for the approval of the Agreement. Further, clause 2.1 of the Agreement sets out that the Agreement covers Plummers Project Services Pty Ltd, which, for the purpose of the Agreement is defined as the ‘Company’. However, where things go awry is the reference in the Agreement to the ABN of the ‘Company’ is not the ABN of the Applicant. The ABN provided, that is ABN: 57 916 269 052, is, instead, the ABN for Plummers Industries Pty Ltd (Plummers Industries), which, at the time the Agreement was made, was the parent entity of the Applicant. The Applicant is now owned by PPS Water Group Pty Ltd (PPS Water), and the Applicant submits that at all material times the Applicant’s ABN is and has been: 87 617 949 685.
The Applicant seeks to vary clause 2.1(a) of the Agreement to replace ABN 57 916 269 052 with ABN 87 617 949 685.
Statutory provisions
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) Act 2022 (Cth), 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.
The Explanatory Memorandum (EM) that supports the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 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.
As was observed in Victorian Hospitals’ Industrial Association,[3] 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 identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union.[4] 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.
Consideration
The Chief Operating Officer of the Applicant, Mr Aaron Huggett, gave evidence that the Applicant, whilst previously a subsidiary of Plummers Industries, is now owned by PPS Water (ABN 31 668 482 424), which in turn has fifty percent ownership of Plummers Industries.[5]
Mr Huggett explained that the Agreement mistakenly referenced the ABN of Plummers Industries, which was an administrative error.[6] In this respect, Mr Huggett spoke to the obvious nature of the error given the references to the Applicant in the Agreement, including with respect to the term ‘Company’, which was relevantly defined in the Agreement as the Applicant.[7] Mr Huggett added that the variation sought would not impact the employees covered by the Agreement.
The Form F17 – Employers declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) that was submitted to the Commission as part of the approval process of the Agreement, stated that the name of the employer was the Applicant, and its ABN was 87 617 949 685.
Having regard to the above, I am satisfied that the inadvertent error in citing the ABN of Plummer Industries in the Agreement instead of that of the Applicant, was an obvious administrative error. It is apparent that the inadvertent inclusion of the incorrect ABN in the Agreement was an error that arose during drafting of the Agreement prior to the ballot for approval of the Agreement. I am also satisfied that in granting the variation sought there will be no disadvantage incurred by those employees covered by the Agreement. While the absence of 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 considered in the present matter.
Conclusion
For the reasons set out above, I am satisfied that the inclusion of Plummers Industries’ ABN in the Agreement instead of that of the Applicant, was an obvious 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 November 2023. An Order[8] giving effect to his decision will be separately issued.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] AE516604.
[2] Plummers Project Services Pty Ltd [2022] FWCA 2290.
[3] [2022] FWCA 4390.
[4] (2021) 304 IR 356.
[5] Witness Statement of Aaron Huggett, [1].
[6] Ibid [2].
[7] Ibid [3].
[8] PR768319.
Printed by authority of the Commonwealth Government Printer
<AE516604 PR768318>
0
0
0