[1] An application has been made for approval of an enterprise agreement known as the Cleanaway Riverina Enterprise 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] Section 205A(1) of the Act provides that an enterprise agreement must include a delegates' rights term for workplace delegates to whom the agreement applies. The Agreement does not contain a delegates' rights term. Pursuant to subsection 205A(2)(b) of the Act, the delegates' rights term contained in the Waste Management Award 2020 is taken to be a term of the Agreement.

[3] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[4] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[5] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[6] Subject to the Undertakings, 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 have been met.

[7] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 19 November 2025. The nominal expiry date of the Agreement is 30 September 2028.

[8] 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.

[9] The Applicant submits that the Agreement contains an obvious error, defect or irregularity, the details of which are set out and considered below.

[10] 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.

[11] 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.

[12] The Applicant seeks to vary the contents page of the Agreement so that the references to clause 10 of the Agreement as contained at various points within clause 10 read "10" instead of "Error! Reference source not found.". The Applicant submits that this is an obvious error which occurred during the conversion of the Agreement from a Microsoft Word document to a PDF.

[13] 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.

[14] In the present case the contended errors are the failure to accurately refer to clause 10 at various places within that clause in the Agreement.

[15] The errors were not identified until after the voting process was completed and are clearly errors of substance and omission.

[16] For the reasons advanced by the Applicant and as set out above, I am satisfied that the errors in the Agreement are obvious errors 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 errors identified by the Applicant.

[17] The variation sought will operate from 19 November 2025. An order giving effect to this decision will be separately issued.

[1] [2021] FWCFB 453.

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