Wormald Australia Pty Ltd T/A Wormald

[2023] FWCA 1047

[2023] FWCA 1047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Wormald Australia Pty Ltd T/A Wormald

(AG2023/631)

WORMALD AUSTRALIA PTY LIMITED TRADING AS WORMALD PORTABLE SERVICE AND SALES DIVISION PERTH ENTERPRISE AGREEMENT 2018 - 2021

Manufacturing and associated industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 12 APRIL 2023

Application for approval of the WORMALD AUSTRALIA PTY LIMITED TRADING AS WORMALD PORTABLE SERVICE AND SALES DIVISION Perth ENTERPRISE AGREEMENT 2018 - 2021

1. An application has been made for approval of an enterprise agreement known as the WORMALD AUSTRALIA PTY LIMITED TRADING AS WORMALD PORTABLE SERVICE AND SALES DIVISION Perth ENTERPRISE AGREEMENT 2018 - 2021 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

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

1. Pursuant to subsection 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. Pursuant to subsection 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Agreement is approved and, in accordance with section 54 of the Act, will operate from 19 April 2023. The nominal expiry date of the Agreement is 30 November 2025.

Variation application

1. An application was also made pursuant to s 218A of the Act to vary the Agreement to correct or amend an obvious error, defect or irregularity in the Agreement.

1. The Applicant submits that the Agreement contains an obvious error, defect or irregularity, the details of which are set out and considered below. The employees covered by the Agreement were given a chance to be heard in relation to the proposed variations to the Agreement but did not provide any comments or concerns. 

Statutory Provisions

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) Bill 2022, provides for the variation of an enterprise agreement 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.”

1. The Explanatory Memorandum (EM) 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.”

Consideration

1. The Applicant seeks to vary clause 1 of the Agreement, which refers to the title of the Agreement, by replacing the current clause with the following:

“This Agreement shall be known as the "WORMALD AUSTRALIA PTY LIMITED TRADING AS WORMALD PORTABLE SERVICE AND SALES DIVISION Perth ENTERPRISE AGREEMENT 2022 – 2025. "”

1. The Applicant also seeks to vary clause 2 of the Agreement, which refers to the coverage of the Agreement, by replacing the current clause with the following:

“This agreement shall be binding upon:

Wormald (hereafter known as the "Company") in respect to its Employees employed as Fire Extinguisher Technicians employed out of 138 Pilbara Street Perth 6106 Australia, (hereinafter known as the "employees").”

1. The Applicant submits that there is an obvious error at clause 1 of the Agreement, in that the clause refers to the period of operation of a previous agreement, being 2018 – 2021. This also does not reflect the title page of the Agreement which refers to 2022 – 2025, the error at clause 1 is submitted to be an obvious drafting error as contemplated by s 218A of the Act.

1. The Applicant submits that there is a further obvious error at clause 2 of the Agreement, in that the clause does not accurately reflect the employees who were provided with and referred to in the NERR which the Agreement is intended to cover and apply. The Applicant submits that the failure to include the correct coverage of the Agreement is an obvious drafting error as contemplated by s 218A of the Act. 

1. As Deputy President Masson sets out in Doctors in Training (Victorian Public Health   Sector) (AMA Victoria/ASMOF) (Single   Interest   Employers) Enterprise Agreement 2022-2026 [2022] FWCA 4390:

“[9]      It is apparent from the text of s. 218A and the supporting EM 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[1] (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, 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. In the present case the contended errors are that of a failure to correctly identify the Agreement title consistently throughout the Agreement and a failure to correctly draft the coverage clause to cover the employees who were intended to be covered by the Agreement as referred to in the NERR. The errors were not identified until after the voting process was completed and are clearly errors of substance and omission.

1. I am satisfied that the inadvertent omission of the correct title from clause 1 and the correct employee coverage from clause 2 of the Agreement are obvious errors that fall within the scope of s 218A(1).

Conclusion

1. For the reasons set out above, I am satisfied that the errors in clauses 1 and 2 are obvious errors 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 an employer covered by the Agreement, thus satisfying the requirements of s 218A(2)(b)(i) of the Act. The variation sought will operate from 19 April 2023. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

[1] [2021] FWCFB 453.

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