Application for variation of the Adtrans Truck Centre Pty Ltd - Laverton North and the AMWU - Victorian Branch Enterprise Agreement 2025

[1] Adtrans Truck Centre Pty Ltd (the Applicant) has made an application (the Application) pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the Adtrans Truck Centre Pty Ltd - Laverton North and the AMWU - Victorian Branch Enterprise Agreement 2025[1] (the Agreement), to correct or amend an error, defect or irregularity in the Agreement.

[2] The Agreement was approved by the Commission on 2 July 2024 and commenced operation on 9 July 2024.[2] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) is a bargaining representative to the Agreement.

[3] The Applicant seeks three variations to the Agreement, being:

1. A variation to clause 10.5 of the Agreement to replace the words "from six (6) months prior to formal acceptance of the new Agreement" with "from 31 October 2024."

2. The correction of a typographical error in clause 3 to replace "Adtrans Truck Centre Ply Ltd" with "Adtrans Truck Centre Pty Ltd" (emphasis added)

3. Removing a text box at the top of page 1 of the Agreement, which states that the agreement is to be read together with an undertaking given by the employer.

[4] Following receipt of the application, my Chambers issued correspondence to the AMWU, seeking its view as to whether it supported the application. On 20 May 2025, the AMWU confirmed it had no objections to the variation.

[5] Section 218A of the Act 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):

(i) one or more of the employers 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.

[6] The Explanatory Memorandum (EM) supporting the insertion of s.218A into the Act relevantly states as follows:[3]

"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 - should the Agreement be amended?

[7] Variation 1 seeks to vary the effective date of a back-pay clause that was to come into effect when the Agreement was approved. The Employer relies on a statement of Claire Saltmarsh, People and Safety Manager Tasmania, who was involved in the bargaining process of the Agreement.

[8] Ms Saltmarsh states that in the bargaining process, the parties had agreed that wage increases under the new Agreement would be back paid from 31 October 2024. Ms Saltmarsh attached contemporaneous documentation in support of this statement.

[9] Ms Saltmarsh further states that at the time the Agreement was voted on, being on 21 January 2025, clause 10.5 had not been updated to reflect back payment from 31 October 2024, as agreed between the parties. The error was not identified until 12 February 2025, after the Agreement had been approved by the Commission.

[10] The AMWU did not object to or disagree with any evidence provided by Ms Saltmarsh.

[11] In these circumstances, I am satisfied that the parties' intention was for wage increases under the Agreement to be back paid from 31 October 2024. I am satisfied that it is appropriate for the Commission to vary the Agreement to replace "from six (6) months prior to formal acceptance of the new Agreement" with "from 31 October 2024" in clause 10.5, to properly reflect the intentions of the parties.

[12] Variation 2 is a clear typographical error, and I am satisfied that it is an obvious error that falls within the meaning of s.218A(1) of the Act.

[13] Regarding Variation 3, the Agreement was not approved with an undertaking from the Applicant. This is effectively a correction of a former error made by the Commission when the Agreement was approved. I am satisfied that this is also capable of being corrected through application of s.218A(1) of the Act.

[14] I am satisfied that the errors that occurred in drafting the Agreement are errors that fall 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 employer covered by the Agreement, in accordance with s.218A(2)(b)(i) of the Act. The variation will operate from 26 May 2025.

[2] [2024] FWCA 2439.

[3] Explanatory Memorandum, Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth), 772.

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