Riviera Australia Pty Ltd
[2023] FWCA 2068
•7 JULY 2023
| [2023] FWCA 2068 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Riviera Australia Pty Ltd
(AG2023/2217)
RIVIERA WORKPLACE AGREEMENT 2023
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT MASSON | MELBOURNE, 7 JULY 2023 |
Application for variation of the Riviera Workplace Agreement 2023.
Riviera Australia Pty Ltd (the Applicant) has made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the Riviera Workplace Agreement 2023[1] (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Commission on 7 June 2023 and commences operation on either 3 September 2023 after the current enterprise agreement passes its nominal expiry date or at such earlier time should the current agreement be terminated prior to its nominal expiry date of 2 September 2023.[2] The Applicant submits that the Agreement contains an error, defect or irregularity, 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.
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 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 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 the headings in Table A.2 Apprentices at Schedule A - Wages of the Agreement. Due to erroneous drafting, the parties inadvertently made an error with the headings in Table A.2 which deals with apprentice rates of pay, with the first group of rates incorrectly referring to ‘Completed year 12’ rather than ‘Has not completed year 12’ and the second group of rates incorrectly referring to ‘Has not completed year 12’ rather than ‘Completed year 12’.
Relevantly, I made the following observations in an earlier decision in dealing with a s.218A application by the Victorian Hospitals' Industrial Association ‘to correct or amend an error, defect or irregularity’ in the Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026;
“[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 (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.”[3]
Turning to whether the typographical error in the headings in Table A.2 Schedule A - Wages constitutes an obvious error defect or irregularity, the following is relevant to my consideration. The effect of the error if not corrected is that apprentices undertaking an apprenticeship where they had not completed Year 12 would be entitled to receive higher rates of pay then apprentices that had completed Year 12. That structure of rates of pay for apprentices is contrary to the structure of apprentice rates of pay contained in the current enterprise agreement, the Riviera Workplace Agreement 2019[4] which will reach its nominal expiry date on 2 September 2023. Correspondence sent by the Applicant to apprentices prior to the vote provided the correct rates of pay. Further, during information sessions held prior to the voting period, apprentices were also shown the correct version of the table of rates of pay.
Having regard to the above, I am satisfied that the inadvertent typographical error in the headings in Table A.2 is an error that arose during drafting of the Agreement prior to the ballot for approval of the Agreement.
Conclusion
For the reasons set out above, I am satisfied that the typographical error in Table A.2 Schedule A is an 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 3 September 2023 or such earlier date should the current agreement be terminated prior to its nominal expiry date of 2 September 2023. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
[1] AE520272
[2] [2023] FWCA 1653
[3] [2022] FWCA 4390
[4] AE505117
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