[2025] FWCA 2916

Fair Work Act 2009

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

Alliance Airlines Pty Ltd Trading AS Alliance Airlines

ALLIANCE AIRLINES PTY LTD AIRCRAFT ENGINEERS (ADELAIDE) ENTERPRISE AGREEMENT 2025

Application for approval of the Alliance Airlines Pty Limited Aircraft Engineers' (Adelaide) Enterprise Agreement 2025 - s 218A variation to correct or amend obvious error, defect or irregularity

[1] Alliance Airlines Pty Ltd (the Employer) has made an application for approval of a single-enterprise agreement known as the Alliance Airlines Pty Limited Aircraft Engineers' (Adelaide) Enterprise Agreement 2025 (the Agreement), pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act).

Variation under s 218A

[2] The Application (Form F16) was accompanied by a proposed undertaking from the Employer to correct typographical errors in the Agreement being errors in clause 15.1(a), clause 19.5, the second table in Table 6A and some text under Table 7.

[3] I indicated to the Employer and the other bargaining representatives that I considered it would be appropriate to deal with the typographical errors pursuant to s 218A of the Act rather than through an undertaking. The applicant consented to that course and the other bargaining representatives did not indicate any opposition.

[4] Section 218A, provides 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

(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."

[5] Section 218A of the Act is not unlike 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. The purpose of the provision 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.

[6] Before exercising a power to vary under s.218A, the Commission must first be satisfied 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 vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

[7] I am satisfied that the Agreement contains obvious errors in clause 15.1(a), clause 19.5, the second table in Table 6A and the text under Table 7. I am satisfied that it appropriate to exercise my discretion to correct or amend the obvious errors.

[8] Pursuant to s 218A of the Act, I order that:

1. The Agreement be varied as set out Annexure A to this Decision.

2. The variations are effective from 8 September 2025.

[9] I note that some provisions of the Agreement (26.5 (Parental leave) and 30.7(Notice of termination by Employee) may be inconsistent with the National Employment Standards (NES).

[10] Clause 26.5 excludes casuals from unpaid parental leave. This appears inconsistent with s 67(2) of the Act which operates to provide an entitlement to parental leave in the NES to a regular casual who has been employed on that basis for a sequence of periods of employment during at least 12 months and would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[11] Clause 30.7(b) provides that if an employee fails to give notice the Company will have the right to withhold monies due to the Employee. The clause does not confine the source of the monies from which this sum could be withheld, which may permit deduction of monies payable on cessation of employment under the NES.

[12] However, clause 5.3 of the Agreement provides that the Agreement will be read and interpreted in conjunction with the NES and where there is inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency.

[13] Consequently, for the purposes of s 186(2)(c), I am satisfied that the terms of the Agreement do not contravene s 55 of the Act.

[14] Clause 4.2 of the Agreement provides that the Agreement will commence to operate on the first day of the first full pay period after 7 days from the Agreement's approval by the Commission (commencement date). Based on information provided by the Employer, that date is 8 September 2025.

[15] Clause 4.3 provides that the nominal expiry date is 4 years from the commencement date.

[16] Section 186(5) provides that FWC must be satisfied that the nominal expiry date will not be more than 4 years after the date on which FWC approves the agreement.

[17] The combined operation of clauses 4.2 and 4.3 of the Agreement is such that the nominal expiry date in the agreement is marginally more (about 10 days) than the 4 years from the date of approval specified by s 186(5). In these circumstances, I had a concern regarding satisfaction with s 186(5).

[18] The Employer has provided a written undertaking to meet my concern regarding s 186(5). I have sought the view of the bargaining representative known to the Commission in respect of the undertaking. A copy of the undertaking is attached in Annexure B. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[19] Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[20] The Australian Licenced Aircraft Engineers Association being 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 the Agreement covers The Australian Licenced Aircraft Engineers Association.

[21] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), being 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 the Agreement covers the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU).

[22] The Agreement is approved. By operation of clause 4.2 of the Agreement and in accordance with s 54(1)(b) of the Act, the Agreement will operate from 8 September 2025.   

Printed by authority of the Commonwealth Government Printer

Variations to the the Alliance Airlines Pty Limited Aircraft Engineers' (Adelaide) Enterprise Agreement 2025 made by Order of the Fair Work Commission pursuant to s 218A of the Fair Work Act

1. Clause 15.1(a) of the Agreement be varied as follows:

(a) For all time worked outside Ordinary Hours the overtime rate of pay will be at the rates outlined in Table 7 Table 8.

1. Clause 19.5 of the Agreement be varied as follows:

19.5 An Employee will be entitled to allowances set out in Table 6 and clause 0 22 of this Agreement. No other allowances are payable to an Employee.

1. The second table in Table 6A of the Agreement be varied as follows:

1. The text under Table 7 of the Agreement be varied as follows:

• Normal Pay Rate (Table 2, 3, 5 & 6A & 8) x Overtime rate in Table 7