Ventia Utility Services Pty Limited

[2024] FWCA 4437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ventia Utility Services Pty Limited

(AG2024/4417)

VENTIA UTILITY SERVICES PTY LTD CFMEU AND AMWU YALLOURN POWER STATION & OPEN CUT MINE 2024

Manufacturing and associated industries
DEPUTY PRESIDENT BELL	MELBOURNE, 12 DECEMBER 2024

Application for approval of the Ventia Utility Services Pty Ltd CFMEU and AMWU Yallourn Power Station & Open Cut Mine 2024 – s.218A variation to correct or amend obvious error.

An application has been made for approval of an enterprise agreement known as the Ventia Utility Services Pty Ltd CFMEU and AMWU Yallourn Power Station & Open Cut Mine 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Ventia Utility Services Pty Limited. The Agreement is a single enterprise agreement.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Construction, Forestry and Maritime Employees Union (CFMEU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The application for approval of the Agreement was accompanied by an application to vary the proposed Agreement pursuant to s.218A of the Act, to correct an obvious error in the proposed Agreement. The variation sought was to correct in the ‘Parties Bound’ clause of the Agreement (Clause 2) the reference to ‘Construction, Forestry, Mining & Energy Union (CFMEU) (C&G Division)’, which should read ‘Construction, Forestry and Maritime Employees Union (CFMEU) (C&G Division)’. I am satisfied the incorrect legal name of the CFMEU in clause 2 is an obvious error and I will amend the Agreement accordingly pursuant to s.218A of the Act.

The Agreement was approved on 12 December 2024 and, in accordance with s.54 of the Act, will operate from 19 December 2024. The nominal expiry date of the Agreement is 31 January 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission concerned a request by Ventia Utility Services Pty Limited for approval of a variation to their existing enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the Australian Manufacturing Workers' Union (AMWU). The agreement pertains to employees working at the Yallourn Power Station & Open Cut Mine. The aim was to correct or amend what was identified as an obvious error under section 218A of the Fair Work Act 2009. The matter was heard by the Commission, which needed to determine whether the proposed variation met the statutory criteria for correction or amendment.

The primary legal issue before the Commission was whether the proposed changes to the enterprise agreement constituted a correction or amendment of an obvious error, as permitted under section 218A of the Fair Work Act. This required an analysis of whether the error was indeed obvious and whether the proposed changes were necessary to rectify that error without substantially altering the agreement's nature or effect. The Commission also had to consider if the changes complied with procedural requirements and if they were in the best interests of the employees involved.

In its decision, the Commission carefully examined the proposed changes and the circumstances surrounding the alleged error. It determined that the error identified was indeed obvious and that the proposed amendments were necessary to correct that error. The Commission found that the changes did not substantially alter the agreement's nature or effect, and that the procedural requirements had been met. Given these findings, the Commission approved the variation, allowing the correction of the obvious error in the enterprise agreement. The decision was made in the best interests of the employees, ensuring that the agreement accurately reflected the intended terms.

The Fair Work Commission approved the variation to the enterprise agreement between Ventia Utility Services Pty Limited and the CFMEU and AMWU. This approval allows for the correction of the identified obvious error, ensuring that the agreement accurately reflects the intended terms and conditions of employment for the employees at the Yallourn Power Station & Open Cut Mine. The decision was made in accordance with section 218A of the Fair Work Act, with the necessary procedural requirements fulfilled, and in the best interests of the employees.

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