Torrens Transit Services Pty Ltd T/A Torrens Transit

[2023] FWCA 1897

[2023] FWCA 1897

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Torrens Transit Services Pty Ltd T/A Torrens Transit

(AG2023/1860)

TORRENS TRANSIT SERVICES PTY LTD, TRANSPORT WORKERS' UNION AND BUS DRIVERS ENTERPRISE AGREEMENT 2022

Passenger vehicle transport (non rail) industry
COMMISSIONER PLATT	ADELAIDE, 29 JUNE 2023

Application for variation of the Torrens Transit Services Pty Ltd, Transport Workers' Union and Bus Drivers Enterprise Agreement 2022

1. Torrens Transit Services Pty Ltd T/A Torrens Transit (the Applicant) has made an application pursuant to s.218(2)(b) of the Fair Work Act 2009 (the Act), to vary the Torrens Transit Services Pty Ltd, Transport Workers' Union and Bus Drivers Enterprise Agreement 2022 (the Agreement) to correct or amend an obvious error, defect or irregularity.

1. The Agreement was approved by the Commission on 1 June 2023 and commenced operation on 8 June 2023.[1] The Applicant is the Employer covered by the Agreement. The Transport Workers Union of Australia (TWU) is also covered by the Agreement.

1. The Applicant submits that after approval, it identified that page 14 of the Agreement had been omitted from the copy of the Agreement lodged. The Applicant advised that the missing page was included in the copy distributed and voted on by employees but was omitted by mistake due to a scanning error during the process of lodgement. A copy of this page is attached in Annexure A.

1. The Applicant seeks that the Agreement is corrected by inserting page 14 into the published Agreement. This page contains the ‘16. Superannuation’ clause and the beginning of the ‘17. Code of Conduct’ clause.

1. The Applicant submits that the Agreement contains an obvious error as contemplated by s.218A of the Act.

1. I have sought the views of the Bargaining Representatives. On 23 June 2023, the TWU and one of the Employee Bargaining Representatives confirmed that they do not object to this application. The parties were content for the matter to be determined on the material filed.

Statutory Provisions

1. Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows;

“(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. The relevant Explanatory Memorandum (EM) 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.”

Consideration

1. As Deputy President Masson recently observed in Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026 [2022] FWCA 4390,

“[9]     It is apparent from the text of s. 218A and the supporting EM that s. 218A is intended to overcome the statutory limitation imposed by s.602 of the Act that was most recently identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union[2] (Advantaged Care). In that decision the Full Bench confirmed that the Commission could not amend the text of an agreement to correct an obvious error, defect or irregularity pursuant to s. 602 of the Act and that other provisions within the Act, ss. 210 or 217, might be used to rectify such error, defect or irregularity.

[10]     There are limitations to the use of ss. 210 and 217 of the Act in varying an agreement to address an obvious error, defect or irregularity. For example, it may be considered costly and impractical to conduct a ballot of employees for the purpose of obtaining approval for the variation of an agreement pursuant to s. 210 of the Act, where the variation sought is not substantive. Section 217 might also not be amenable to correcting an obvious error, defect or irregularity where the error does not create uncertainty or ambiguity. It is accepted that s. 218A confers an additional discretion for the Commission to amend an error, defect, or irregularity in an agreement, be that in form or substance. (emphasis added)

1. In the present case, the error is the mistaken omission of a page of the Agreement at the time the Agreement was scanned and lodged in the Commission.

1. The error, which was not identified until after the Agreement was approved, is clearly an error of substance and an omission. This error would in my view fall within the scope of s. 218A(1).

Conclusion

1. For the reasons set out above, I am satisfied that the omission of page 14 of the Agreement is an error within the meaning of s. 218A(1) of the Act. I am further satisfied that my determination to vary the Agreement by application by the Employer satisfies the requirements of s. 218A(2)(b) of the Act. The variation sought will operate from 29 June 2023. An order giving effect to this decision will be separately issued.

COMMISSIONER

<AE520211  PR763632>

Annexure A

[1] [2023] FWCA 1587

[2] [2021] FWCFB 453

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