Veolia Environmental Services (Australia) Pty Ltd
[2024] FWCA 1052
•25 MARCH 2024
| [2024] FWCA 1052 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Veolia Environmental Services (Australia) Pty Ltd
(AG2024/672)
VEOLIA ENVIRONMENTAL SERVICES (AUSTRALIA) PTY LTD INDUSTRIAL SERVICES FABRICATIONS ENTERPRISE AGREEMENT 2022
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 25 MARCH 2024 |
Variation of enterprise agreement to correct or amend an obvious error, defect or irregularity pursuant to s 218A of the Fair Work Act 2009 (Cth) – application unopposed – application granted.
On 28 March 2022, the Veolia Environmental Services (Australia) Pty Ltd Industrial Services Fabrications Enterprise Agreement 2022 (Enterprise Agreement) was approved by the Fair Work Commission (Commission).
On 11 March 2024, Veolia Environmental Services (Australia) Pty Ltd (Veolia) filed an application under section 218A of the Fair Work Act 2009 (Cth) (Act) to correct or amend an obvious error, defect or irregularity in the Enterprise Agreement.
Veolia seeks the following orders:
1.The Enterprise Agreement is varied by deleting the words “Clause 19” in the first sentence of clause 21 of the Enterprise Agreement and replacing them with the words "Clause 20”, so that the first sentence of clause 21 of the Enterprise Agreement reads, “The provisions outlined in Clause 20 of this agreement do not apply to employees when they are required to carry out a shell exchange”.
2.This variation will operate from 4 April 2022.
3.The consolidated version of the Enterprise Agreement as amended will be published on the Commission's website.
I gave the employees covered by the Enterprise Agreement, together with the AMWU, an opportunity to be heard in relation to the application to vary the Enterprise Agreement. Neither the employees nor the AMWU took up the opportunity to be heard.
I am satisfied on the basis of the uncontested material before the Commission that the reference to “Clause 19” in clause 21 of the Enterprise Agreement is an error, in that it should instead refer to “Clause 20”. I am satisfied that this error:
(a)is an unintentional error that occurred during the negotiation process and which was not identified until significantly after the Enterprise Agreement was approved. So much is apparent from the history of enterprise agreements covering these employees and what was discussed (and not discussed) during bargaining for the Enterprise Agreement;
(b)would have been corrected if the error had been identified during the negotiation or approval process for the Enterprise Agreement;
(c)is not controversial between Veolia and the employees covered by the Enterprise Agreement; and
(d)is manifestly clear, such that an officious bystander would reply, “Of course” when asked if the amendment is appropriate.
For the reasons given, I have decided to exercise my discretion under s 218A of the Act to make the orders sought by Veolia.
DEPUTY PRESIDENT
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