Securecorp Protective Services Pty Ltd

[2024] FWCA 2210

[2024] FWCA 2210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Securecorp Protective Services Pty Ltd

(AG2024/1706)

SECURECORP PROTECTIVE SERVICES PTY LTD AND UNITED WORKERS UNION VICTORIAN STATE GOVERNMENT AGREEMENT 2024

Security services
DEPUTY PRESIDENT BELL	MELBOURNE, 14 JUNE 2024

Application for approval of the Securecorp Protective Services Pty Ltd and United Workers Union Victorian State Government Agreement 2024 – s.218A variation to correct or amend obvious error.

Approval

1. An application has been made for approval of an enterprise agreement known as the Securecorp Protective Services Pty Ltd and United Workers Union Victorian State Government Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Securecorp Protective Services Pty Ltd. The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 21 February 2023 and the Agreement was made on 15 May 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

1. Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. The Notice of Employee Representational Rights (NOERR) included the words ‘insert locations’ instead of specifying the relevant locations. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The United Workers’ Union (UWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. The Agreement was approved on 14 June 2024 and, in accordance with s.54 of the Act, will operate from 21 June 2024. The nominal expiry date of the Agreement is 14 June 2026.

Variation

1. The Agreement lodged appeared to contain an error in clause 3.1.2 of the Agreement regarding the Agreement title. Agreement clause 1 provides that the Agreement title is the ‘Securecorp Protective Services Pty Ltd and United Workers Union Victorian State Government Agreement 2024’. Definitions clause 3.1.2 provides that the Agreement means ‘this Enterprise Agreement, the Securecorp and United Workers Union Victorian State Government Agreement 2023.’

1. On 4 June 2024, I wrote to the parties and sought clarification that the Agreement definition at 3.1.2 is meant to have the same Agreement name as that set out in clause 1 of the Agreement. I advised the parties that I intended to amend the clause on my own initiative pursuant to s.218A of the Act as an ‘obvious error’. Parties were provided an opportunity to provide submissions if they disagreed with this proposed course of action.

1. In the same correspondence I also noted that the Agreement appeared to contain some cross-referencing errors in clause 39.1.2 and 39.1.3 and requested the parties confirm or otherwise clarify the apparent errors identified and whether they should also be corrected pursuant to s.218A. The employer subsequently advised Chambers that there were no objections to amending all the errors identified, including the cross-referencing errors and requested they be corrected pursuant to s.218A of the Act.

1. Section 218A, which came into effect on 7 December 2022, is 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; or
(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. As has been noted in recent decisions[2] of the Commission, s.218A of the Act is akin to the slip rule found in s.602 of the Act, which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The evident purpose of s.218A is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

1. Before an amendment under s.218A can be made, there first must be satisfaction of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

1. I am satisfied the title reference error in clause 3.1.2 and cross-referencing errors in clauses 39.1.2 and 39.1.3 in the Agreement, as confirmed by the parties, are obvious errors. While s.218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied the amendments should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the errors are readily identified, as are the corrections needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The errors will be amended as per the order below.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error as follows:

1. By deleting the reference to ‘Securecorp and United Workers Union Victorian State Government Agreement 2023’ in clause 3.1.2 and replacing it with ‘Securecorp Protective Services Pty Ltd and United Workers Union Victorian State Government Agreement 2024’.

2. By deleting the reference to ‘39.1.3.1’ and  ‘39.1.3.2’ where they appear as sub clause references in clause 39.1.2, and replacing them with ‘39.1.2.1’ and ‘39.1.2.2’ respectively.

3. By deleting the reference to clause ‘38.2.3’ in renamed sub clause 39.1.2.2, and replacing it with ‘39.1.3’.

4. By deleting the reference to clause ‘0’ in clause 39.1.3 and replacing it with ’39.1.2’.

1. The variation will operate from 14 June 2024.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

[2] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

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