Wilson Mining Services Pty Ltd T/A Wilson Mining, Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1936

[2023] FWCA 1936

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Wilson Mining Services Pty Ltd T/A Wilson Mining, Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1856)

WILSON MINING (QLD) ENTERPRISE AGREEMENT 2023

Coal industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 29 JUNE 2023

Application for approval of the Wilson Mining (QLD) Enterprise Agreement 2023

1. An application has been made pursuant to s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the Wilson Mining (QLD) Enterprise Agreement 2023 (Agreement).

1. I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Construction, Forestry, Maritime, Mining and Energy Union, 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.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 6 July 2023. The nominal expiry date of the Agreement is 29 June 2027.

Variation

1. Application has also been made to vary the Agreement under s 218A of the Act to correct or amend an obvious error, defect or irregularity. Clause 4.4(b)(1)(B)(iv) currently reads as:

   “a part-time Employee will be paid per hour 1/35th of the ordinary time rate prescribed for the classification, group or level on which the Employee is engaged.”

The Employer seek that the words “time rate” be substituted for the words “week’s pay”.

1. Section 218A of the Act provides:

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. Section 218A of the Act is akin to the slip rule found in s 602 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. Section 218A was inserted by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Amendment Act), which received royal assent on 6 December 2022 and commenced in part the following day. Part 17 of Schedule 1 of the Amendment Act commenced on 7 December 2022. In the result s 218A of the Act commenced on that day. 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. The applicant submits that this is an obvious drafting error. I accept that clause 4.4(b)(1)(B)(iv) involves a minor typographical error and the correction sought will aid in the readability of the Agreement and avoid confusion.

1. I consider that the error at clause 4.4(b)(1)(B)(iv) should be corrected by varying the Agreement. There are no grounds of which I am aware which would tell against the exercise of my discretion to vary the Agreement. I propose to amend the Agreement to correct the error identified above.

Order

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

1.   In clause 4.4(b)(1)(B)(iv) delete the words “time rate” and insert the words “week’s pay.

DEPUTY PRESIDENT

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