Virgin Tech Pty Ltd - [2024] FWCA 1885

[2024] FWCA 1885

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Virgin Tech Pty Ltd

(AG2024/1120)

VIRGIN TECH (STORES) AGREEMENT 2023

Airline operations
COMMISSIONER WILSON	MELBOURNE, 23 MAY 2024

Application for approval of the Virgin Tech (Stores) Agreement 2023 – s.218A variation to correct or amend obvious error, defect or irregularity.

Approval

An application has been made for approval of an enterprise agreement known as the Virgin Tech (Stores) Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Virgin Tech Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 23 October 2023 and the Agreement was made on 24 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, 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 Transport Workers' Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 May 2024. The nominal expiry date of the Agreement is 30 June 2026.

Variation

Section 218A provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:

“(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.”

In recent decisions of the Fair Work Commission[2] (the Commission), it has been noted that s.218A of the Act is akin to the slip rule found in s.602 of the Act which allows the Commission to correct or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 1885
Decision Date: 23 MAY 2024

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Virgin Tech Pty Ltd to amend the Virgin Tech (Stores) Agreement 2023. The company sought to correct what it claimed to be an obvious error in the agreement's text. The application was made under section 218A of the Fair Work Act 2009, which allows for the correction of errors, defects, or irregularities in registered agreements. The Commission had to determine whether the identified changes constituted an obvious error and whether the application met the criteria for approval.

The primary legal issue before the Commission was whether the changes proposed by Virgin Tech Pty Ltd constituted an obvious error, defect, or irregularity within the meaning of section 218A. The company argued that the error was clear and could be rectified without altering the agreement's fundamental purpose. The Commission examined the nature of the alleged error, whether it was apparent and straightforward, and if the proposed correction would preserve the agreement's overall intent and fairness. The company also needed to demonstrate that the changes would not unfairly disadvantage any party.

In its decision, the Fair Work Commission concluded that the proposed changes indeed represented an obvious error that could be corrected without compromising the agreement's fundamental purpose. The Commission found that the error was clear, straightforward, and did not alter the agreement's intended effect. The company's application met the criteria set out in section 218A of the Fair Work Act 2009. The Commission approved the amendment, allowing Virgin Tech Pty Ltd to make the necessary corrections to the agreement.

The final orders of the Commission were that the Virgin Tech (Stores) Agreement 2023 be amended in accordance with the application. The specific changes were outlined in the decision, correcting the identified error. The amended agreement was to be registered, and all parties were bound by the new terms as of the date of the decision. The Commission emphasised the importance of accuracy in registered agreements and encouraged all parties to review their agreements thoroughly to avoid similar issues in the future.

Orders