Whitebottle Pty Ltd As Trustee For The Bridgeman Trust T/A Bracken Ridge Tavern

[2024] FWCA 708

[2024] FWCA 708

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Whitebottle Pty Ltd As Trustee For The Bridgeman Trust T/A Bracken Ridge Tavern

(AG2024/303)

BRACKEN RIDGE TAVERN ENTERPRISE AGREEMENT 2023

Hospitality industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 23 FEBRUARY 2024

Application for variation of the Bracken Ridge Tavern Enterprise Agreement 2023

1. Whitebottle Pty Ltd as trustee for the Bridgeman Trust (the Applicant) has applied pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Bracken Ridge Tavern Enterprise Agreement 2023 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

1. The Agreement was approved by the Commission on 13 December 2023 and commenced operation on 20 December 2023. The Applicant is the sole employer covered by the Agreement. There are no employee organisations covered by the Agreement.

1. The Applicant seeks to amend clause 28.1 of the Agreement by changing ‘paid weekly’ to ‘paid fortnightly’.

1. I directed the Applicant to serve any employee bargaining representatives with a copy of the Form 1 and associated documents and requested that they provide their views (if any) to chambers by no later than 20 February 2024. A copy of the email was provided to my chambers, confirming that the two employee bargaining representatives were served as I directed. No response was received from the two employee bargaining representatives.

Consideration

1. Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:

“(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.”

1. Further, the Explanatory Memorandum in support of the Bill provides 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. As Deputy President Masson observed in Application by Victorian Hospitals’ Industrial Association:[1] 

“[9]      It is apparent from the text of s.218A and the supporting Explanatory Memorandum that s.218A is intended to overcome the statutory limitation imposed by s.602 of the Act that was most recently identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union (Advantaged Care). In that decision the Full Bench confirmed that the Commission could not amend the text of an agreement to correct an obvious error, defect or irregularity pursuant to s.602 of the Act and that other provisions within the Act, such as ss.210 or 217, might be used to rectify such error, defect or irregularity.

[10]      There are limitations to the use of ss.210 and 217 of the Act in varying an agreement to address an obvious error, defect or irregularity. For example, it may be considered costly and impractical to conduct a ballot of employees for the purpose of obtaining approval for the variation of an agreement pursuant to s.210 of the Act, where the variation sought is not substantive. Section 217 might also not be amenable to correcting an obvious error, defect or irregularity where the error does not create uncertainty or ambiguity. It is accepted that s.218A confers an additional discretion for the Commission to amend an error, defect, or irregularity in an agreement, be that in form or substance.”

1. The Applicant submits that the Agreement provided to its employees during the access period and ultimately filed with the initial application to the Commission, stated that employees were to be paid fortnightly. Following issues raised by my chambers, the Applicant submitted an amended signature page, which mistakenly attached an older version of the Agreement. As such, the Applicant submits that the Agreement as voted on by employees, was that employees were to be paid fortnightly.

1. I am satisfied that the error at clause 28.1 of the Agreement is an obvious error. I am satisfied 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 and is the correction needed to make the Agreement accurately reflect what was clearly agreed to by the parties. There are no reasons not to exercise my discretion and good reasons to do so. Clause 28.1 of the Agreement will be amended as per the order below.

Order

1. I order, pursuant to s.218A of the Act, that clause 28.1 of the Agreement be varied as follows:

28.1. All employees are to be paid fortnightly on a day nominated by the employer.

1. The variations pursuant to s.218A above will operate from 23 February 2024.

DEPUTY PRESIDENT

[1] [2022] FWCA 4390 at [9]-[10]

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