s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Boroondara City Council Trading AS City of Boroondara

BOROONDARA CITY COUNCIL ENTERPRISE AGREEMENT 2024

Application for variation of the Boroondara City Council Enterprise Agreement 2024

[1] An application has been made for approval of a variation to the Boroondara City Council Enterprise Agreement 2024[1] (the Agreement) to correct or amend an error, defect or irregularity in the Agreement. The application is made pursuant to s.218A of the Fair Work Act 2009 (the Act). It has been made by Boroondara City Council T/A City of Boroondara. The application was made on 21 February 2025.

[2] The Agreement was approved by the Fair Work Commission (the Commission) on 11 December 2024 and commenced operation on 18 December 2024. The Applicant submits that the Agreement contains an error, the details of which are set out and considered below.

[3] Section 218A provides for the variation of enterprise agreements 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):

(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."

[4] The Applicant submits there is defective wording in Clause 55.8(a) of the Agreement and applies under s.218A to vary the agreement to correct an obvious error. The variation requested by the Applicant, as set out in the Applicant's Form F1 application, is the addition of 'an average', bolded and underlined below:

"Local Laws/ Animal Management Officer (s) / Parking Officers shall work a roster of an average of 42 hours per week over a four-week cycle."[2]

[5] In its Form F1, the Applicant submitted that the error in clause 55.8(a) of the Agreement is obvious and unintentional and the variation in necessary to align the clause with the intentions of the parties to that agreement, and to reflect the outcome of the consultation process that took place regarding adjustments to rostering arrangements over a 4-week cycles, specifically for Civic Services employees.

[6] On 24 February, my Chambers wrote to the Applicant and requested that the Applicant seek the views of the ANMF and ASU, both unions covered by the Agreement pursuant to s.183 of the Act, on the proposed variation.[3] The ASU replied to my Chambers on 5 March and stated that the union had no objection to the variation. No response from the ANMF was received by the 5 March deadline given.

[7] I am satisfied that the error in Clause 55.8(a) of the Agreement is an error 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, thus satisfying the requirements of s.218A(2)(b)(i) of the Act.

[8] The variation to the Agreement is to amend Clause 55.8(a) to read "Local Laws/ Animal Management Officer (s) / Parking Officers shall work a roster of an average of 42 hours per week over a four-week cycle."

[9] The variation sought will operate from 20 March 2025. An order giving effect to this decision will be issued at the same time as this decision.[4]

[3] PR782339.

[4] PR785328.

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