W.Christian (Terang) Pty Ltd T/A Christians Bus

[2023] FWCA 2397

[2023] FWCA 2397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

W.Christian (Terang) Pty Ltd T/A Christians Bus

(AG2023/2270)

CHRISTIANS BUS ENTERPRISE AGREEMENT 2023

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BELL	MELBOURNE, 1 AUGUST 2023

Application for approval of the Christians Bus Enterprise Agreement 2023 – s.218A variation to correct or amend obvious error.

Approval

1. An application has been made for approval of an enterprise agreement known as the Christians Bus Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer W.Christian (Terang) Pty Ltd T/A Christians Bus. The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 25 October 2022 and the Agreement was made on 23 June 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

1. 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.

1. The Agreement was approved on 1 August 2023 and, in accordance with s.54 of the Act, will operate from 8 August 2023. The nominal expiry date of the Agreement is 1 June 2026.

Variation

1. The Agreement lodged contained an error in clause 7.3. The clause provides that the ‘“Parent Award” for the purposes of this Agreement refers to the Passenger Vehicle Transportation Award 2020 as at 1^st June 2026 and any amendments to that document … ”.

1. On  21 July 2023, I wrote to the parties to clarify that the reference to “1^st June 2026” appeared to be a mistake and was intended to be a reference to “1^st June 2023”.  I advised the parties that I intended to amend the clause on my own initiative pursuant to s.218A of the Act as an ‘obvious error’. Parties were provided an opportunity to provide submissions if they disagreed with this proposed course of action. On 31 July 2023 the employer confirmed it was a mistake and there was no objection from the parties to me amending the Agreement pursuant to s.218A.

1. Section 218A, which came into effect on 7 December 2022, 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; or
(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.”

1. As has been noted in recent decisions[2] of the Commission, 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 amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. Its evident purpose is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

1. Before an amendment under s.218A can be made, there first must be satisfaction of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

1. I am satisfied that the reference to “1^st June 2026” in clause 7.3 of the Agreement is an obvious error. While section 218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied that the amendment should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the error is readily identified, as is the correction needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The reference to “1^st June 2026” in clause 7.3 of the Agreement will be amended to read “1^st June 2023”, as ordered below.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error as follows:

1. By deleting the reference to “1^st June 2026” in clause 7.3 of the Agreement, and replacing it with “1^st June 2023”.

2. The variation will operate from 1 August 2023.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

[2] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

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