Thales Australia Limited T/A Thales Australia

[2023] FWCA 1157

[2023] FWCA 1157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Thales Australia Limited T/A Thales Australia

(AG2023/976)

THALES AUSTRALIA ABOVE WATER SYSTEMS ENTERPRISE AGREEMENT 2022

(ODN AG2023/667) [AE519737]

Manufacturing and associated industries
DEPUTY PRESIDENT EASTON	SYDNEY, 21 APRIL 2023

Application for variation of the Thales Australia Above Water Systems Enterprise Agreement 2022.

1. Thales Australia Limited T/A Thales Australia has made an application to vary the Thales Australia Above Water Systems Enterprise Agreement 2022 (the Agreement). The application was made under s.218A of the Fair Work Act 2009 (Cth) (the Act).

1. The Agreement was approved on 13 April 2023 and commenced operation on 20 April 2023.

1. Thales submits that a draft copy of the proposed agreement was provided to the negotiating parties in Microsoft Word format and some further changes were made to the document after the Union parties’ responses. Thales converted the document into PDF format and circulated a copy to all employees to be covered by the proposed agreement.

1. The version of the Agreement circulated to the employees and voted on contained a number of cross-referencing and typographical errors.  It appears that these cross-referencing errors were created when the PDF document was converted from Word format.

1. The same version was filed in the Commission and approved. Thales now asks that the Agreement be varied to rectify the following errors:

a)change the clause references in clause 7.2.1 (page 13) as follows:

Currently reads	To:
200	20
233	23
244	24
411	41
488	48

b)change the clause references in clause 7.3.1 (page 13) as follows:

Currently reads	To:
222.2	22.2
411	41
488	48

c)change the name of “Table 200-1” appearing in clause 20.3.1 (page 33) to “Table 20-1.”

d)change the text “(clause 366)” in clause 34.1.1 (page 50) to “(Clause 36.6)”.

e)change the name of “Table 466-1” appearing in clause 46.1.1 (page 61) (both in the text of the clause and at the top of the Table) to “Table 46-1.”

f)change the name of “Table 466-2” appearing in clause 46.1.1 (page 62) (both in the text of the clause and at the top of the Table) to “Table 46-2.”

g)change the name of “Table 544-1” appearing in clause 54.1.4 (page 69) (both in the text of the clause and at the top of the Table) to “Table 54-1.”

h)change the text (so as to remove the opening bracket) as follows:

·“clause 7.4.1(a)” in clause 7.4.1 d) (page 14) to “7.4.1 a)”

·“clause 7.4.5(b)” in clause 7.4.5 e) (page 15) to “clause 7.4.5 b)”

1. change the references to “Annex K” in clauses 10.7.5 and clause 10.8.3 (both on page 19) to “Annex A”

j)insert “29.1.1” at the commencement of the line “Employees will be entitled to the following Public Holidays:” under paragraph 29.1 (page 45)

k)change the text “*50 feet)” in clause 41.2.5 (page 57) to “(50 feet)” -  ie substitute * with (.

l)change the heading of clause 43 to insert a space between “ACCOMMODATION” and “EXPENSES” (page 59)

m)alter the left justification of the text of paragraph 47.1.1 (page 63) so as to align with surrounding paragraphs.

n)change the clause number references in Table B-1 (page 77) as follows:

Allowance	Currently reads	To:
Motor Vehicle Allowance	41.2	40.2
Fortnightly Electrical license allowance,	41.3	40.3
Sea Trial Allowance Full Day	41.2	42.2
On Call Allowance	24.7.2	24.7

1. The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), United Workers' Union (UWU), and The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) were given a chance to be heard in relation to the proposed variation of the Agreement. The AMWU and CEPU do not oppose the proposed variations. No response was received from the UWU or APESMA. 

Statutory Provisions

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 and 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;
(iii)  an employee organisation covered by the agreement.

(2)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. The  Explanatory  Memorandum  that  supports  the  above-referred  Bill  relevantly states 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.”

2. I am satisfied that the errors listed in [5] above are obvious errors within the meaning of s.218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the representative of the employer covered by the Agreement (per s.218A(2)(b)(ii)). The variation sought will operate from the date the Agreement commenced, being 20 April 2023.

1. The consolidated version of the Agreement, as varied, is attached to this decision.[1] An order given effect to this decision will be separately issued.[2]

DEPUTY PRESIDENT

[1] AE519737-2.

[2] PR761322.

Printed by authority of the Commonwealth Government Printer

<AE519737 PR761320>