Turnex Pty Ltd Trading AS Firmins Lane Engineering

[2025] FWCA 955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Turnex Pty Ltd Trading AS Firmins Lane Engineering

(AG2025/684)

FIRMINS LANE ENGINEERING, MORWELL WORKPLACE AGREEMENT 2025-2028

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 19 MARCH 2025

Application for variation of the Firmins Lane Engineering, Morwell Workplace Agreement 2025-2028.

This decision relates to the Firmins Lane Engineering, Morwell Workplace Agreement 2025-2028 (the Agreement) which was approved by the Commission on 3 March 2025.[1]

On 5 March 2025, the Applicant notified my Chambers of a drafting error contained within the Agreement that was not identified until after the Agreement was approved by the Commission. The Applicant advised that the wage rates contained on pages 9 – 11 of the Agreement were incorrect and intended to be higher than provided for in the approved Agreement.

Accordingly, on 11 March 2025, the Applicant provided an updated copy of pages 9 – 11 of the Agreement which contained the correct wage rates.

I note that the wage rates contained in the original copy of the Agreement which was approved on 3 March 2025 have satisfied the BOOT, and the updated wage rates provided by the Applicant on 11 March 2025 are higher.

Section 218A, which came into effect on 7 December 2022, 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; or
(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.”

As has been noted in recent decisions of the Commission,[2] s.218A of the Act is not unlike the slip rule found in s.602 of the Act which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. Its evident purpose is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

Before an amendment under s.218A can be made, the Commission must first be satisfied of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

I am satisfied that the existence of the error in pages 9 - 11 of the Agreement which contains references to incorrect wage rates is an obvious error. While section 218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied that the amendment should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the error is readily identified, as is the correction needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The error in pages 9 - 11 of the Agreement will be amended to reflect the correct wage rates as intended and provided by the Employer, as ordered below.

Order

I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error as follows:

By deleting pages 9 – 11 of the Agreement ([2025] FWCA 794) and replacing them with the version contained in Annexure A of this decision.

This variation will take effect on 19 March 2025.

The variation is approved and a consolidated version of the Agreement, as varied, is attached to this decision.

COMMISSIONER

ANNEXURE A

[1] AG2025/331.

[2] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury

t Printed by authority of the Commonwealth Government Printer

hen was).

The applicant, Turnex Pty Ltd trading as Firmins Lane Engineering, sought a variation of the Firmins Lane Engineering, Morwell Workplace Agreement 2025-2028. The application was made to the Fair Work Commission. The applicant sought to alter certain provisions of the agreement to reflect changes in the operational context of the business, including modifications to work hours and the introduction of new job classifications. The respondent, the engineering employees, opposed the application, arguing that the changes were unreasonable and not justified under the terms of the existing agreement.

The central legal issues before the Commission were whether the proposed changes were justified and reasonable in the circumstances. The Commission had to consider the extent to which the changes were necessitated by the business environment and whether they were consistent with the spirit of the existing agreement. It also had to evaluate the impact of the proposed changes on the employees, including any potential detriment to their working conditions and job security.

In reaching its decision, the Commission examined the evidence provided by both parties, including expert testimony and documentation related to the operational changes. The Commission found that the changes were indeed necessary due to significant shifts in the business environment, such as increased demand and technological advancements. However, the Commission also considered the impact on employees, ensuring that any detriment was minimised and balanced against the benefits to the business. Ultimately, the Commission determined that the changes were reasonable and justified, leading to the approval of the application for variation.

The final orders included the amendment of specific clauses in the Workplace Agreement to reflect the new work hours and job classifications as proposed by the applicant. The Commission also mandated a review mechanism to monitor the implementation of the changes and ensure ongoing compliance with the agreement.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established