Vault Pressure Control Australia Pty Ltd

[2023] FWCA 1313

[2023] FWCA 1313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Vault Pressure Control Australia Pty Ltd

(AG2023/1306)

VAULT PRESSURE CONTROL AUSTRALIA FIELD SERVICE ENTERPRISE AGREEMENT 2022

Oil and gas industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 9 MAY 2023

Application for variation of the Vault Pressure Control Australia Field Service Enterprise Agreement 2022

1. Vault Pressure Control Australia Pty Ltd (Employer) has made an application to vary the Vault Pressure Control Australia Field Service Enterprise Agreement 2022 (Agreement). The application was made under s.218A of the Fair Work Act 2009 (the Act).

1. The Agreement was approved on 28 April 2023 and commenced operation on 5 May 2023. The Employer submits that the version of the Agreement voted on by the covered employees contained errors in Clauses 29.9 and 29.17.

1. The employee bargaining representatives have given written notice that they support the application made by the Employer dated 8 May 2023.

Error or Defect and Amendment

1. The Employer seeks to vary the subclause numbering in Clause 29.9 of the Agreement by replacing it with the following:

“While on annual leave, Employees will receive their applicable Annual Salary and an in-field allowance as per

(a)   50% of the in-field allowance outlined in clause 26.4 for Trades Assistants and Field Service Technicians;

(b)   75% of the in-field allowance outlined in clause 24.17 for Leading Hands; and

(c)   100% of the-in-field allowance outlined in clause 24.20 for Supervisors.”

1. The Employer seeks that Clause 29.17 of the Agreement be varied such that it reads as follows:

“If the Employee resigns from their employment or their employment is terminated, payment of any accrued but untaken annual leave will be calculated in accordance with clauses 29.9(a), 29.9(b) and 29.9(c), as applicable.”

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 reads 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.”

1. I am satisfied that the errors at Clauses 29.9 and 29.17 of the Agreement 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 a representative of the employer covered by the Agreement (per s.218A(2)(b)(i)). The variation will operate from the date the Agreement commenced, being 5 May 2023.

1. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

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