Re Vopak Terminals Sydney Pty Ltd T/A Vopak
[2023] FWCA 644
•27 FEBRUARY 2023
| [2023] FWCA 644 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Re Vopak Terminals Sydney Pty Ltd T/A Vopak
(AG2023/199)
Vopak Terminals Sydney Pty Limited Enterprise Agreement 2022
| Oil and gas industry | |
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 27 FEBRUARY 2023 |
Application for variation of the Vopak Terminals Sydney Pty Limited Enterprise Agreement 2022
Vopak Terminals Sydney Pty Limited (Vopak) has made an application pursuant to s 218A of the Fair Work Act 2009 (Act) to vary the Vopak Terminals Sydney Pty Limited Enterprise Agreement 2022 (Agreement) to correct or amend an obvious error, defect or irregularity in the Agreement.
The Agreement was approved by the Commission on 24 January 2023 and commenced operation on 31 January 2023. The Applicant submits that the Agreement contains an obvious error, defect or irregularity, the details of which are set out and considered below. The United Workers Union and the employees covered by the Agreement were given a chance to be heard in relation to the proposed variation to the Agreement but did not provide any comments or concerns.
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) Bill 2022, provides for the variation of an enterprise agreement 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 above-referred Bill 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.”
Consideration
The Applicant seeks to vary clause 2.1(b) of the Agreement, which refers to the coverage of the Agreement, by replacing the current clause with the following:
“Employees employed by the Company who work at any of the Company’s premises located at:
· Bitumen Terminal - Gate B33, 49 Friendship Road, Port Botany NSW 2036;
· Site B Fuel Terminal - Gate B47 - 20 Friendship Road, Port Botany NSW 2036;
· B4 Expansion - 37 Friendship Road, Port Botany NSW 2036;
· NSW Ports Bulk Liquid Berth Complex (BLB1 and BLB2) - Gate B42 Charlotte Road, Port Botany NSW 2036;
and are employed in the classifications set out in clause 9 of this Agreement; and”
The Applicant submits that there is an obvious error at 2.1(b) of the Agreement, in that the clause only refers to one of the four premises in Port Botany to which the Agreement is intended to cover and apply. The Applicant has submitted that employees from all four locations were involved in the bargaining and voting process for the Agreement; that all were provided with a copy of the NERR, the voting notice, and the proposed Agreement and were involved in the information sessions. The Applicant submits that the failure to include the other three locations in clause 2.1(b) of the Agreement is an obvious drafting error as contemplated by s 218A of the Act.
As Deputy President Masson sets out in Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026 [2022] FWCA 4390:
“[9] 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 most recently identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union[1] (Advantaged Care). 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.
[10] There are limitations to the use of ss. 210 and 217 of the Act in varying an agreement to address an obvious error, defect or irregularity. For example, it may be considered costly and impractical to conduct a ballot of employees for the purpose of obtaining approval for the variation of an agreement pursuant to s. 210 of the Act, where the variation sought is not substantive. Section 217 might also not be amenable to correcting an obvious error, defect or irregularity where the error does not create uncertainty or ambiguity. It is accepted that s. 218A confers an additional discretion for the Commission to amend an error, defect, or irregularity in an agreement, be that in form or substance.”
In the present case the contended error is that of a failure to correctly identify the coverage clause to include all four locations where employees who were intended to be covered by the Agreement work. The error was not identified until after the voting process was completed and is clearly an error of substance and omission.
I am satisfied that the inadvertent omission of the other three locations from clause 2.1(b) of the Agreement is an obvious error that falls within the scope of s 218A(1).
Conclusion
For the reasons set out above, I am satisfied that the error in clause 2.1(b) is 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 representative of 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 midnight on 27 February 2023. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
[1] [2021] FWCFB 453.
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