SeaRoad Logistics Pty Ltd

[2024] FWCA 3060

[2024] FWCA 3060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

SeaRoad Logistics Pty Ltd

(AG2024/3039)

SEAROAD LOGISTICS (TASMANIA / VICTORIA) –TRANSPORT WORKERS’ UNION FAIR WORK AGREEMENT 2023-2026

Road transport industry
COMMISSIONER YILMAZ	MELBOURNE, 21 AUGUST 2024

Application for variation of the SeaRoad Logistics (Tasmania / Victoria) –Transport Workers’ Union Fair Work Agreement 2023-2026

1. An application has been under s.218A of the Fair Work Act 2009 (the Act) by SeaRoad Logistics Pty Ltd (Applicant) to vary the SeaRoad Logistics (Tasmania Victoria) –Transport Workers’ Union Fair Work Agreement 2023-2026 (the Agreement) in order to correct or amend an obvious error, defect or irregularity.

1. The Transport Workers’ Union of Australia (TWU) is covered by the Agreement.

1. The application seeks to vary the Kilometer Rates table in clause 48 to correct rates that are an obvious error as evidenced by the rates from the previous agreement. The rates as shown “provide for a payment approximately 100 times higher than what is intended”. The Agreement was approved on 21 June 2024 containing the incorrect rates and the operative date of the new Agreement was 28 June 2024.

1. Section 218A of the Act came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is as follows:

“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. Further, the Explanatory Memorandum in support of the Bill provides 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.”

1. Considering s.218A(2)(b)(i) of the Act, the Fair Work Commission may vary an enterprise agreement on application by one or more of the employers covered by the agreement.

1. On filing the application to vary, the TWU were served but did not provide any views. On 14 August 2024, my chambers wrote to the TWU, seeking their views in relation to the application. No views were expressed.

1. I am satisfied with the Applicant’s explanations as set out in its form F1 document, I accept that the Agreement contains obvious errors and that it is appropriate to correct them by amending the Kilometer Rates table in clause 48. The corrected table is set out in the Annexure to this decision. A remedy to address this error is appropriate from the date of effect of the new Agreement.

Order

1. I order, pursuant to s.218A of the Act, that clause 48 be amended as outlined in Annexure A below.

1. The variations will operate from 28 June 2024.

Printed by authority of the Commonwealth Government Printer

<AE525158  PR778520>

Annexure A