Ventia Australia Pty Ltd T/A Ventia Australia Pty Ltd
[2023] FWCA 818
•20 MARCH 2023
| [2023] FWCA 818 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Ventia Australia Pty Ltd T/A Ventia Australia Pty Ltd
(AG2023/600)
VENTIA DEFENCE STORES STORE OPERATIONS WA ENTERPRISE AGREEMENT 2022
| Storage services | |
| DEPUTY PRESIDENT O'NEILL | MELBOURNE, 20 MARCH 2023 |
Application for variation of the Ventia Defence Stores Store Operations WA Enterprise Agreement 2022
Ventia Australia Pty Ltd (the Applicant) has applied pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Ventia Defence Stores Store Operations WA Enterprise Agreement 2022 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Commission on 18 January 2023 and commenced operation on 25 January 2023. The Applicant is the sole employer covered by the Agreement. There are no employee organisations covered by the Agreement.
The Applicant seeks to vary clause 2 by amending the expiry date of the Agreement from “three years after the Agreement comes into operation” to “30 June 2024”.
The Applicant also seeks to vary the headings of the tables appearing in clauses 10.2 (rates of pay), 18.1 (deployment) and 18.3 (meals) by:
· Replacing the words “First full pay period on or after this agreement is approved by the Fair Work Commission” appearing in the second column of each table with “On commencement”.
· Replacing the words “First full pay period on or after the first anniversary that this agreement is approved by the Fair Work Commission” appearing in the third column of each table with the words “First full pay period after 1st Anniversary of Commencement 01 May 23”.
· Replacing the words “First full pay period on or after the second anniversary that this agreement is approved by the Fair Work Commission” appearing in the fourth column in each table with the words “First full pay period after 2nd Anniversary of Commencement 01 May 24”.
Consideration
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) Act 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:
“(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.”
Further, the Explanatory Memorandum in support of the Bill provides 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.”
As Deputy President Masson observed in Application by Victorian Hospitals’ Industrial Association:[1]
“[9] It is apparent from the text of s. 218A and the supporting Explanatory Memorandum 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 (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, such as 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.”
The Applicant submits that the current expiry date at clause 2 is a typographical error and does not reflect the expiry date agreed upon during negotiations. It contends that the explanatory memorandum distributed to employees during the access period, which contained a table comparing the key changes between the Agreement and the previous agreement, demonstrates that the expiry date for the Agreement was intended to be 30 June 2024.
The Applicant also submits that the variations sought in relation to the headings of the tables appearing in clauses 10.2, 18.1 and 18.3 are to ensure that the Agreement aligns with the intention agreed during negotiations. It submits that increases to rates of pay, deployment allowances and meal allowances were intended to come into effect in May 2023, and that the intended wording is more beneficial to employees as the Agreement currently provides for the increases to commence on or after the first anniversary of the Agreement being approved by the Commission, being 25 January 2024.
I accept that the explanatory memorandum contained the intended expiry date of the Agreement and the fact the version of the Agreement lodged with the Commission did not contain the correct expiry date was an inadvertent error on the Applicant’s part that arose during the drafting of the Agreement prior to its approval. I am also satisfied that the tables in clauses 10.2, 18.1 and 18.3 were intended to have the headings as outlined at paragraph [4] above, and that these are similarly inadvertent errors on the Applicant’s part that arose during the drafting of the Agreement. Further, the relevant clauses in the previous agreement are in the exact terms as the Agreement, which also indicates that the errors occurred during the drafting process.
The contended errors are obvious errors of substance that occurred during the drafting process, which were not identified until after the Agreement was approved. In my view, these are the type of errors contemplated by s.218A of the Act. While disadvantage is not a factor I am expressly required to take into account, I have also considered that the errors in clauses 10.2, 18.1 and 18.3 may disadvantage employees by delaying the annual increase to their pay and deployment and meal allowances to January 2024.
For the reasons set out above, I am satisfied that the errors contained in clauses 2, 10.2, 18.1 and 18.3 are obvious errors within the meaning of s.218A of the Act. In accordance with s.218A(3), the variation will operate from 25 January 2023. An order to that effect will be issued separately.
DEPUTY PRESIDENT
[1] [2022] FWCA 4390 at [9]-[10]
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