Re UGL Operations and Maintenance (Services) Pty Ltd

[2023] FWCA 557

[2023] FWCA 557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Re UGL Operations and Maintenance (Services) Pty Ltd

(AG2023/212)

UGL Industrial & Energy Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 21 FEBRUARY 2023

Application for variation of the UGL Industrial & Energy Enterprise Agreement 2022

1. This is a decision to vary the UGL Industrial & Energy Enterprise Agreement 2022[1] (the Agreement) pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to correct an obvious error, defect or irregularity in the Agreement. The variation is made on the initiative of the Fair Work Commission (the Commission) pursuant to s.218A(2)(a) of the Act.

Background

1. UGL Operations and Maintenance (Services) Pty Ltd (UGL) lodged an application (the Approval Application) for the approval of the Agreement on 20 December 2022. On 19 January 2023, UGL contacted the Commission via telephone to discuss a formatting error it had identified at clause 3.1 of the Agreement (the formatting error). On 23 January 2023, UGL sent an email to [e-mail] setting out the formatting error and the proposed amendment.

1. On 23 January 2023, the Approval Application was allocated to me for determination. In the absence of my Chambers receiving the beforementioned correspondence, the Agreement containing the formatting error was approved on 27 January 2023.

1. On 2 February 2023, Ms Ursula Rossi, Industrial Relations Manager, UGL, corresponded with my Chambers in relation to the formatting error. Ms Rossi subsequently provided my Chambers with the correspondence previously sent to [e-mail] on 23 January 2023 in which she raises the formatting error.

1. On 7 February 2023, the Parties to the Agreement, being UGL, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) were notified that I intended to vary the Agreement to correct the formatting error pursuant to s.218A of the Act. The parties were provided with an opportunity to raise any objections to the proposed course. No objections were raised.

The Error or Defect and Amendment

1. The formatting error identified by UGL at clause 3.1 reads as follows:

“3. APPLICATION OF AGREEMENT

3.1 Subject to clause Error! Reference source not found., this Agreement will apply to an Employee who performs work on or in connection with UGL’s Service Facility, energy and industrial plant maintenance, refurbishment, capital works, turnaround and shutdown activities, project work and any other similar activities.” (emphasis in original)

1. In correspondence dated 23 January 2023, UGL submitted that the clause should read:

“3. APPLICATION OF AGREEMENT

3.1 Subject to clause 4.2, this Agreement will apply to an Employee who performs work on or in connection with UGL’s Service Facility, energy and industrial plant maintenance, refurbishment, capital works, turnaround and shutdown activities, project work and any other similar activities.” (emphasis in original)

1. UGL submitted that the formatting error is likely to have occurred as a result of the conversion of the Agreement from a word document to a PDF file. UGL submitted that the formatting error has not caused any disadvantage to employees covered by the Agreement as employees are aware that both the AMWU and the CFMMEU are bargaining representatives for the employees and are parties covered by the Agreement. UGL further submits that the clause was also provided in the previous iteration of the Agreement, the RCR Energy Pty Ltd Enterprise Agreement 2018[2].

The Legislation

1. Section 218A came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The Act provides 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. I am satisfied that the Agreement contains an obvious error or defect. The error or defect identified by UGL at clause 3.1 is an obvious formatting error which I accept occurred during the process of converting the Agreement from a word document to a PDF file. Clause 3 of the Agreement sets out the application of the Agreement. Clause 3.1 provides that the Agreement applies to employees who perform work on or in connection with UGL’s Service Facility, energy and industrial plant maintenance, refurbishment, capital works, turnaround and shutdown activities, project work and any other similar activities. Clause 4 of the Agreement identifies UGL and the employees referred to in clause 3.1 as the parties covered by the Agreement. Clause 4.2 provides that the AMWU and CFMMEU, as bargaining representatives for the employees, will apply to the Commission to have the Agreement cover them.

1. On a plain reading of the Agreement, it is obvious that there is a formatting error in clause 3.1, and I accept that it was intended to read “Subject to clause 4.2”. I accept UGL’s submission that the formatting error has not caused any disadvantage to the employees covered by the Agreement. The materials lodged with the Approval Application provide that employees were aware that both the AMWU and CFMMEU were bargaining representatives for the employees and are parties covered by the Agreement.

1. The Commission’s discretion to vary clause 3.1 of the Agreement under s.218A has been enlivened. The formatting error came to the attention of the Commission on 23 January 2023, prior to the Agreement being approved. I therefore consider it appropriate to vary the Agreement at the Commission’s own initiative to correct the obvious error or defect.

1. An Order [PR750949] varying the Agreement to amend clause 3.1 will be issued separately.

COMMISSIONER

[1] AE519006.

[2] AE500177.

Printed by authority of the Commonwealth Government Printer

<AE519006  PR750944>