Visy Board Pty Ltd

[2023] FWCA 838

[2023] FWCA 838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Visy Board Pty Ltd

(AG2023/678)

VISY (SMITHFIELD, WARWICK FARM, DANDENONG, O’CONNOR) ENTERPRISE AGREEMENT 2022

(ODN AG2023/187) [AE519369]

Manufacturing and associated industries
DEPUTY PRESIDENT EASTON	SYDNEY, 20 MARCH 2023

Application for variation of the Visy (Smithfield, Warwick Farm, Dandenong, O’Connor) Enterprise Agreement 2022.

1. Visy Board Pty Ltd (Visy) has made an application to vary the Visy (Smithfield, Warwick Farm, Dandenong, O'Connor) Enterprise Agreement 2022 (the Agreement). The application was made under s.218A of the Fair Work Act 2009 (Cth) (the Act).

1. The Agreement was approved on 1 March 2023 and commenced operation on 8 March 2023. Visy submits that the version of the Agreement voted on by the covered employees contained incorrect base rates of pay that were inadvertently inserted and are inconsistent with the percentage increase specified in the Agreement. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was given a chance to be heard in relation to the proposed variation of the Agreement and does not oppose the proposed variation.

Error or Defect and Amendment

1. Visy seeks to vary the base rates of pay at Appendix 3 by replacing the tables at pages 34 and 42 of the Agreement with the following:

Classification	Current	October 1, 2022	October 1, 2023	October 1, 2024
VB Dandenong
1 – Operator	1341.03	1391.319	1426.102	1461.755
2 – Full Time Forklift Drivers	1272.96	1320.696	1353.713	1387.556
3 – Asst Operator/Part Time Forklift Drivers	1225.16	1271.104	1302.882	1335.454
4 – Feeder	1177.299	1221.448	1251.984	1283.284
5 – Process Worker	1083.98	1124.629	1152.745	1181.564

Current	October 1, 2022	October 1, 2023	October 1, 2024
VB Warwick Farm
- Operator	$1,324.84	$1,374.52	$1,408.89	$1,444.11
- Assistant Operator/stacker	$1,277.87	$1,325.79	$1,358.94	$1,392.91
- Process Worker	$1,262.16	$1,309.49	$1,342.23	$1,375.78
- Forklift Driver	$1,332.80	$1,382.78	$1,417.35	$1,452.78
- Grab Driver	$1,407.93	$1,460.727	$1,497.246	$1,534.677

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 is 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 error at pages 34 and 42 of the Agreement in Appendix 3 is an obvious error 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 the 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 8 March 2023.

1. The consolidated version of the Agreement, as varied, is attached to this decision.[1] An order giving effect to this decision will be separately issued.[2]

DEPUTY PRESIDENT

[1] AE519369-2.

[2] PR760429.

Printed by authority of the Commonwealth Government Printer

<AE519369 PR760425>