Tradeconnex Pty Ltd

[2023] FWCA 2973

[2023] FWCA 2973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tradeconnex Pty Ltd

(AG2023/2852)

TRADECONNEX PTY LTD ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 15 SEPTEMBER 2023

Application for approval of the TradeConnex Pty Ltd Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the TradeConnex Pty Ltd Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tradeconnex Pty Ltd. The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 September 2023. The nominal expiry date of the Agreement is 15 September 2027.

Variation

1. On 30 August 2023, my Chambers sent correspondence to the Applicant raising two typographical errors found in the Agreement.

1. The first typographical error was that Clause 5.13 of the Agreement states ‘…the rates prescribed at clause 6.12 incorporate the casual loading.’ However, the Agreement does not contain a clause 6.12. The Applicant responded to the concern on 1 September 2023 and indicated that the “The clause reference of 6.12 in 5.13 is incorrect and should read 5.12”.

1. The second typographical error was that clause 16.8 of the agreement states that ‘Annual leave is paid at ordinary rates of pay together with a loading of I 7.5%.’. It was not clear whether the annual leave loading was 17.5% or 7.5% as there is an I, as opposed to a 1. The Applicant responded to the concern on 1 September 2023 and indicated that the “The loading referred to in Clause 16.8 is 17.5%”

1. Taking into consideration s.218A of the Act, I have determined to vary the enterprise agreement to correct or amend the errors.

1. Section 218A of the Act 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:

“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.

(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. Considering s.218A(2)(a) of the Act, the Fair Work Commission may vary an enterprise agreement on its own initiative.

1. I am satisfied that the agreement should be varied to correct the obvious errors. The reference to clause 6.12 in clause 5.13 will be varied to clause 5.12. The reference to “I 7.5%” at clause 16.8 will be varied to “17.5%”.

1. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement and correct the error.

Order

1. I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct the obvious errors by referencing clause 5.12 in clause 5.13 as opposed to clause 6.12 and the annual leave loading at clause 16.8 will be read as 17.5% as opposed to of “I 7.5%”.

COMMISSIONER

Annexure A

[1] PR766246.

Printed by authority of the Commonwealth Government Printer

<AE521507  PR766234>