SDF Electrical Pty Ltd

[2023] FWC 2807

[2023] FWC 2807

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

SDF Electrical Pty Ltd

(AG2023/3894)

SDF ELECTRICAL PTY LTD AND CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2023 - 2026

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 25 OCTOBER 2023

SDF Electrical Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2023 - 2026

1. An application has been made under s 218A of the Fair Work Act 2009 (Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to vary the SDF Electrical Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2023 - 2026 (Agreement) in order to correct an obvious error. The employer that is covered by the Agreement, SDF Electrical Pty Ltd, supports the application.

1. The Agreement was approved under s 185 of the Act earlier today. Clause 4.4 of the Agreement deals with the amounts that are to be paid by the employer to the income protection insurance provider on behalf of employees who are covered by the Agreement. The CEPU contends that clause 4.4 of the Agreement wrongly states that the employer’s contributions per employee to the income protection insurance provider will be in the amounts indicated in the table ‘inclusive of GST’. The union submits that this is an obvious error because the parties had negotiated and understood the amounts to be paid by the employer as being exclusive of GST. The CEPU asks the Commission to vary the Agreement by deleting the word ‘inclusive’ in clause 4.4 and inserting in its place the words ‘exclusive’. It submits that the proposed correction would reflect the actual bargain struck between the CEPU and the employer which was then approved by employees covered by the Agreement. The correction will result in employees being better off under the present terms of clause 4.4 of the Agreement, although no better off that what was intended by the parties.

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. It provides as follows:

“218A Variation of enterprise agreements to correct or amend errors, defects of 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 as described in the application. I accept that the correct position was clear to the parties and relevant employees at the time the Agreement was made. The Commission’s discretion to vary the Agreement under s 218A has been enlivened. It is appropriate to vary the Agreement to correct the obvious error.

1. Clause 4.4 of the Agreement is varied to remove from clause 4.4 the word ‘inclusive’ and to insert in its place the word ‘exclusive’. The variation will operate from the date on which the Agreement will commence operation, which is 1 November 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE522052 PR767623>