SIMPEC Pty Ltd T/A SIMPEC

[2024] FWCA 3309

[2024] FWCA 3309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

SIMPEC Pty Ltd T/A SIMPEC

(AG2024/3510)

SIMPEC PTY LTD ENTERPRISE AGREEMENT 2024-2027

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 19 SEPTEMBER 2024

Application for variation of the SIMPEC Pty Ltd Enterprise Agreement 2024-2027

1. The SIMPEC Pty Ltd Enterprise Agreement 2024-2027[1] was approved by the Fair Work Commission on 23 April 2024. The Construction, Forestry and Maritime Employees Union is an employee organisation covered by the Agreement.

1. SIMPEC Pty Ltd has made an application under s.218A of the Fair Work Act 2009 to vary the Agreement to correct or amend an error, defect or irregularity.

1. SIMPEC submits that the Agreement provided and approved by me in the original decision[2] omitted ‘Appendix 3: Map of the Perth CBD’. This appendix was included in the Agreement when it was voted on, but due to a scanning error was not provided to the Commission for approval. This Appendix is used in determining the scope of the Agreement, as it shows worksites which are not covered by the Agreement.

1. Following receipt of the Application, my Chambers reached out to the CFMEU, seeking its view as to whether it supported the application. The CFMEU confirmed they do not object to the application.

Relevant legislation

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 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.”

Consideration

1. The variation sought by SIMPEC is to resolve a scanning error which resulted in the published Agreement making a number of references to a missing appendix.

1. SIMPEC’s views are not opposed by the CFMEU. In these circumstances I am satisfied that it is appropriate for the Commission to vary the Agreement to include Appendix 3 as intended by the parties.

1. I am satisfied that the errors that occurred in the omission of Appendix 3 are errors that fall within the meaning of s.218A of the Act. I am further satisfied that the application to vary the Agreement has been made by the employer covered by the Agreement, in accordance with s.218A(2)(b)(i) of the Act. The variation will operate from 30 August 2024. An Order[3] giving effect to the variation is issued separately.

COMMISSIONER

[1] AE524303.

[2] [2024] FWCA 1430.

[3] PR779426.

Printed by authority of the Commonwealth Government Printer

<AE524303  PR779425>