SIMPEC Pty Ltd T/A SIMPEC Summary

[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

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.

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.

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.

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

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

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.

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.

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

SIMPEC Pty Ltd T/A SIMPEC is before the Fair Work Commission in an application for a variation of the SIMPEC Pty Ltd Enterprise Agreement 2024-2027. The application was made by the employer, SIMPEC Pty Ltd, seeking to alter certain conditions within the existing enterprise agreement. The dispute centres on the employer's contention that changes in business operations necessitate amendments to the existing agreement to maintain competitiveness and operational efficiency.

The primary legal issues the Commission had to address were whether the proposed changes to the agreement were justified under the Fair Work Act 2009, and whether the employer had demonstrated a genuine need for the variations. The Commission needed to determine if the employer had met the threshold requirements for approving variations, including whether the changes were in good faith and if they were necessary for a significant economic, technological, or structural change in the employer's business.

In reaching its decision, the Commission considered the evidence presented by the employer regarding the need for changes due to shifts in market conditions and operational requirements. The Commission assessed the employer's arguments against the legislative criteria and found that the proposed changes were necessary and in good faith. The Commission also took into account the impact on employees, ensuring that the variations were fair and reasonable. Consequently, the application was approved, and the enterprise agreement was varied as requested.

The final orders of the Commission included the specific amendments to the enterprise agreement as proposed by SIMPEC Pty Ltd, reflecting changes to employment conditions such as hours of work, overtime provisions, and remuneration adjustments. The varied agreement was to take effect from the date of the Commission's decision, ensuring that the changes were implemented promptly to address the employer's operational needs.

SIMPEC Pty Ltd T/A SIMPEC

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established