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austlii:cth/FWCA/2025/3559
General information, not legal advice.
FWCA
2025-10-21
Original judgment source is linked above.
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
BELMONT 16FT SAILING CLUB LIMITED EMPLOYEES ENTERPRISE AGREEMENT 2024
Variation of enterprise agreement - s218A - obvious error, defect or irregularity
[1] The Belmont 16ft Sailing Club Ltd (the Club) has applied to vary the Belmont 16ft Sailing Club Limited Employees Enterprise Agreement 2024 (2024 Agreement). The Application is made pursuant to s 218A of the Fair Work Act 2009 (the Act) which empowers the Commission to vary enterprise agreements to correct an 'obvious error, defect or irregularity'.
[2] The Club asserts that a clause in the 2024 Agreement was inserted inadvertently during bargaining. The clause appeared in drafts of the Agreement that were taken from earlier enterprise agreements.
[3] The Club has filed and relies upon two statements of Rachel Baxter (dated 18 July 2025 and 9 September respectively), the Human Resources Manager of the Club and Joel Simmons, the Chief Operating Officer of the Club (dated 18 July 2025) which outline the error and how it came about.
[4] The clause that was inserted by error is Clause 25.12 of the 2024 Agreement provides that:
Casual Employees are not entitled to annual leave; however they shall receive 1/12th of the Monday to Friday casual hourly rate for each hour of ordinary time worked (Monday to Sunday) as a pro-rata annual leave schedule. Such pro rata annual leave shall be paid weekly.
[5] There are two earlier Agreements relevant to the Application, the Belmont 16ft Sailing Club Limited Employees Enterprise Agreement 2010 (the 2010 Agreement) and the Belmont 16ft Sailing Club Limited Employees Enterprise Agreement 2014 (the 2014 Agreement).
[6] Clause 23.10 of the 2010 Agreement provided:
Casual Employees are not entitled to annual leave, however they shall receive 1/12th of the Monday to Friday casual hourly rate for each hour of ordinary time worked (Monday to Sunday) as a pro-rata annual leave schedule. Such pro rata annual leave shall be paid weekly.
[7] A similar term, with a caveat, appeared in the 2014 Agreement at Clause 25.11 as follows:
Casual Employees are not entitled to annual leave, however any Casual employees engaged prior to the commencement of this agreement shall receive 1/12 of the Monday to Friday casual hourly rate for each hour of ordinary time worked (Monday to Sunday) as a pro-rata annual leave schedule. Such pro-rata annual leave shall be paid weekly.
[8] Ms Baxter explains that the purpose of the caveat was to preserve the casual annual leave loading entitlement for existing staff. She states that by 2021 the only remaining staff member to whom the entitlement applied had transferred to permanent part time employment.
[9] Ms Baxter's evidence is that on 9 April 2024, in the course of preparing a draft of the 2024 Agreement she sent an electronic copy of the 2014 Agreement - which she had thought to be the final copy - to the Club's bargaining representative. It was not the final version of the 2014 Agreement as it retained the casual annual leave provision subject of this Application.
[10] The evidence of Ms Baxter and Mr Simmons is that the casual annual leave provision was not discussed during bargaining. That evidence is supported by material provided by the employee bargaining representatives filed by the Club.
[11] I am satisfied given the above that there was a relevant error. The question is whether it is an error susceptible to correction under s. 218A.
[12] Section 218A was inserted by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (the SJBP Act) and is in the following terms:
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):
(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 Revised Explanatory Memorandum to the SJBP Act described the provision in these terms at paragraph 816:
The new section would complement the FWC's existing power to vary enterprise agreements to remove ambiguity or uncertainty (existing sections 217-217A)
[14] Shortly after the provision's commencement a Full Bench of the Commission in Application by Aurizon Operations Ltd T/A Aurizon [2023] FWCFB 193 (Aurizon) provided guidance on its application. The Full Bench note that the provision is analogous to the 'slip rule', which for the Commission's purposes is contained in s 602 of the Act. That section does not however extend to correcting enterprise agreements.
[15] At [76] the Full Bench in Aurizon considered the relationship between the new provision and the existing power in s 217 observing that:
The enactment of s 218A in addition to the pre-existing power in s 217 to vary enterprise agreements indicates that it was intended to have a sphere of operation separate to and distinct from s 217. Therefore, s 218A is not to be construed or applied on the basis that 'an obvious error, defect or irregularity' would encompass the type of ambiguity or uncertainty (as discussed in Bianco Walling) that is correctable under s 217. Rather, the text of s 218A(1), including its reflection of the language of s 602,the established construction of s 602 as an analogue of the slip rule and the REM's identification of the statutory purpose of s 218A all indicate that the power ins 218A to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity is confined to the remediation of clearly apparent and unintentional mistakes in circumstances not susceptible to controversy. Aurizon's submission that s 218A empowers the Commission 'to alter the legal effect and operation of an enterprise agreement term even when to do so results in a different "bargain" between the parties' is rejected since it would extend the operation of the provision beyond mere inadvertency and into the realm of s217.
[16] The operation of the slip rule in this Commission's predecessor was summarised in Re Timber and Allied Industries 1999[1]****:
[33] The rule is concerned with a discretion, in the exercise of which considerations of fairness and the justice of the amendment are relevant. Because of the nature of the power, and circumstances in which it will be exercised, the Correction Order operates from the date of the earlier Order with retrospective effect, to make the corrected Order operate with full force as corrected.
[34] Of relevance to the matter before the Commission, the slip and error rule enables a correction in the following circumstances:
[35] Similar principles prevail in Commission proceedings. As a matter of course, caution must be exercised when applying the slip and error rule. However, in the circumstances of this case the slip and error rule may be brought to bear. It may reasonably be surmised that the incorrect reference was due to a clerical or other like error; the omission of Regulation 131A was unintended; the substitution of Regulation 131A of the Workplace Relations Regulations for Regulation 131 of the Act gives effect to the intention of the Commission at the time the Award was simplified; there is no controversy between the parties that this is what was intended; it is an amendment consistent with an outcome that a Court might reach through construing the clause.
[17] This approach was approved and adopted in RotoMetrics Australia Pty Ltd v AMWU [2011] FWAFB 7214 (RotoMetrics) by a Full Bench of Fair Work Australia characterising s 602 in these terms at [29]:
Section 602 is intended to be a statutory analogue of the 'slip rule' used by superior courts to correct certain errors in orders. It must be applied with caution and only in circumstances in which the use of the 'slip rule' is permissible
[18] At [32] the Full Bench goes on to note that:
**[**G]iven the need to exercise caution in utilising s.602 of the Act to correct an obvious error, it would be necessary for a Member to afford affected persons with an opportunity to be heard in relation to correcting an error via s.602 and, in particular, to address the appropriateness of the use of the "slip rule" in the circumstances of the particular matter, having regard to relevant authority.
[19] The Application turns on whether I am satisfied the correction sought is one that is properly susceptible of variation under s 218A not s 217 or s 207.
[20] In forming that view I am guided by the document on its face and the extrinsic evidence of its creation. I also have regard to the observation of the Full Bench in Aurizon at [77] that:
There can be no error, defect or irregularity within the meaning of s 218A where the text of a provision reflects the intended meaning. The misconceived nature of Aurizon's position is exposed in its identification of the requisite error as being its own error in the bargaining process, in not anticipating the consequences of the provision it agreed to. Section 218A is plainly not concerned with the correction of errors which parties retrospectively perceive they made in the bargaining process. Seeking to use s 218A in this way would be akin to a union applying under the section to vary an enterprise agreement to obtain higher wage increases because it did not correctly anticipate the future rate of inflation during bargaining.
[21] The face of the document does not assist me in making a finding about the parties' intention. This is not a typographical or transposition error whose character can be readily inferred from the context of the document.
[22] In this case the extrinsic material, particularly the witness statements and previous agreements weigh in favour of a finding that the error is not one that reflects the intended meaning. I have particular regard to the fact that the 2024 Agreement reverted to the 2010 Agreement text not the 2014 Agreement.
[23] I have found that the clause in question was not discussed during bargaining. The statements of the remaining bargaining representatives do not reveal any controversy in the proposed correction.
[24] The key difference between ss 207 and 218A is that the former requires the parties to revisit bargaining. The process under s 218A is a purely administrative one.
[25] I am mindful that the 'slip rule' should always be exercised with caution and I have followed the approach in RotoMetrics and sought the views of the affected employees on the proposed correction. Those views support the amendment.
[26] I am satisfied that, having regard to the circumstances of the error and the views of the affected employees, it is appropriate that I exercise the discretion in s 218A to vary the 2024 Agreement to correct the error in the terms sought.
[27] The Club has requested that any variation operate retrospectively from the commencement of the 2024 Agreement. The operative date of the 2024 Agreement was 9 October 2024[2].
[28] I order that pursuant to s 218A of the Act Clause 24.12 of the 2024 Agreement be deleted with effect from 9 October 2024.
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