[1] Kinetic (WA) Pty Ltd has applied pursuant to s 218A of the Fair Work Act 2009 (Cth) to correct an obvious error in a decision issued on 1 June 2022 in [2022] FWCA 1659 (Approval Decision).

[2] The Approval Decision relates to the approval of the Kinetic (WA) - Bus Drivers - Greenfields Enterprise Agreement 2022 which is a greenfields agreement made between Kinetic and the Transport Workers' Union.

[3] Kinetic seeks that the Commission replace the words in clause 2.1.2 in the Agreement to clarify the group of employees covered by the Agreement. The TWU supports the application.

[4] The application seeks to vary clause 2.1.2 (Parties to the Agreement), which currently reads:

2.1.2 Employees of Kinetic who are engaged in the positions set out in the classifications listed in Section 42 Classifications: and

2.1.2 Employees of Kinetic who are engaged as Bus Drivers in the provision of Transperth bus services in the Fremantle (including Fremantle CAT and Circle Route South-West) and Rockingham-Mandurah Contract Areas, where those employees are engaged pursuant to Request for Tender No. 210144 issued by the Western Australian Public Transport Authority.

[6] Kinetic submits that on 16 March 2022, it submitted a tender response to the Public Transport Authority for the provision of bus services in the Fremantle and Rockingham-andurah Contract Areas (Tendered Routes). At this time, Kinetic had no operations or employees in Western Australia.

[7] To support its tender response, Kinetic entered into a Memorandum of Understanding with the TWU WA Branch. Pursuant to this MOU, Kinetic and the TWU agreed to make a greenfields aagreement to cover bus drivers performing work on the Tendered Routes. This greenfields agreement was intended to be largely based on the same terms and conditions as the Transdev WA Pty Ltd Metropolitan Bus Driverrrs Enterprise Agreement 2019, which covered Transdev bus drivers who were performing work on the Tendered Routes.

[8] Kinetic and the TWU entered into discussions for a greenfields agreement with the intention that should Kinetic be successful in its tender to the PTA to service the Tendered Routes, the greenfields agreement would cover the Kinetic bus drrivers employed to perform work on the Tendered Routes.

[9] Despite this common position between the parties, clause 2.1.2 of the Agreement is worded in broader terms and is not expressly limited to bus drivers who perform work on the Tendered Routes.

[10] Kinetic and the TWU agreed on the terms of the Agreement and the Agreement was approved by the Commission on 1 June 2022.

[11] On 16 September 2022, the PTA informed Kinetic that its tender had not been successful. Following the unsuccessful tender, Kinetic established other operations in WA undertaking charter services and PTA school bus services. These operations are arguably covered by the Agreement, though this was not the intention of the parties.

[12] Section 218A of the Act came into effect on Wednesday 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) and is 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

• (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.

[13] The variation sought by Kinetic is to resolve an error with respect to the employees who are covered by the Agreement. In the circumstances, I am satisfied that it is appropriate for the Commission to vary the Agreement to make the changes set out at paragraph [5] above.

[14] Based on the material before me, I am satisfied that the error in the Agreement is an obvious error or irregularity 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 8 June 2022. An Order[1] giving effect to the variation is issued separately.

[15] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[1] PR794813.

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