Application for approval of the Brotherhood of St Laurence UWU and SDA Social Enterprises Agreement 2025

[1] An application has been made for approval of an enterprise agreement known as the Brotherhood of St Laurence UWU and SDA Social Enterprises Agreement 2025 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] On the basis of the material before the Fair Work Commission, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval of the Agreement have been met.

[3] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 28 January 2026. The nominal expiry date of the Agreement is 27 January 2027.

[4] The United Workers' Union and the Shop, Distributive and Allied Employees Association, being bargaining representatives for the Agreement, have each given notice to the Fair Work Commission that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the United Workers' Union and the Shop, Distributive and Allied Employees Association.

[5] An application was also made pursuant to s 218A of the Act to vary the Agreement to correct or amend an obvious error, defect or irregularity in the Agreement.

[6] The Brotherhood of St. Laurence (Applicant) submits that the Agreement contains an obvious error, defect or irregularity, the details of which are set out and considered below.

[7] Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, provides for the variation of an enterprise agreement 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.

[8] The Explanatory Memorandum (EM) that supports the above-referred Bill relevantly states as follows:

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.

[9] The Applicant seeks to vary the pay rate for the motor vehicle allowance contained in the table at clause A.27 of the Agreement so that the pay rate for the motor vehicle allowance reads "$1.07" rather than "$1.77". The Applicant submits that this is an obvious error which occurred as the result of a typographical error.

[10] In an email sent from my Chambers at 2:56pm on 15 January 2026, bargaining representatives were given an opportunity to provide any comments in relation to the proposed amendment by 4pm on Monday, 19 January 2026. No responses were received by my Chambers.

[11] As Deputy President Masson sets out in Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026 [2022] FWCA 4390:

[9] It is apparent from the text of s. 218A and the supporting EM that s. 218A is intended to overcome the statutory limitation imposed by s.602 of the Act that was most recently identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union[1] (Advantaged Care). In that decision the Full Bench confirmed that the Commission could not amend the text of an agreement to correct an obvious error, defect or irregularity pursuant to s. 602 of the Act and that other provisions within the Act, ss. 210 or 217, might be used to rectify such error, defect or irregularity.

[10] There are limitations to the use of ss. 210 and 217 of the Act in varying an agreement to address an obvious error, defect or irregularity. For example, it may be considered costly and impractical to conduct a ballot of employees for the purpose of obtaining approval for the variation of an agreement pursuant to s. 210 of the Act, where the variation sought is not substantive. Section 217 might also not be amenable to correcting an obvious error, defect or irregularity where the error does not create uncertainty or ambiguity. It is accepted that s. 218A confers an additional discretion for the Commission to amend an error, defect, or irregularity in an agreement, be that in form or substance.

[12] In the present case the contended error is the failure to accurately refer to the correct pay rate for the motor vehicle allowance contained in the table at clause A.27 of the Agreement.

[13] The error was not identified until after the voting process was completed and is clearly an error of substance and omission.

[14] For the reasons advanced by the Applicant and as set out above, I am satisfied that the error in the Agreement is an obvious 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 an employer covered by the Agreement, thus satisfying the requirements of s 218A(2)(b)(i) of the Act. Having regard to all the circumstances, I am satisfied that it is appropriate to exercise my discretion to vary the Agreement to correct the obvious error identified by the Applicant.

[15] The variation sought will operate from 28 January 2026. An order giving effect to this decision will be separately issued.

[1] [2021] FWCFB 453.

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