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

Construction, Forestry and Maritime Employees Union

SMART COMMERCIAL GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PAINTING & DECORATING ENTERPRISE AGREEMENT 2024 - 2027

Application for approval of the SMART COMMERCIAL GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2024 - 2027

[1] An application has been made for approval of an enterprise agreement known as the SMART COMMERCIAL GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2024 - 2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry and Maritime Employees Union. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Construction, Forestry and Maritime Employees Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 June 2025. The nominal expiry date of the Agreement is 2 July 2027.

[5] Clause 1.1 of the Agreement contained a different agreement title to what was reflected on the cover page of the agreement, the F16, the F17 and the Notice of Employee Representational Rights. Clause 1.1 of the Agreement read, 'SMART COMMERCIAL GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2024 - 2027', whereas the rest of the documentation read, 'SMART COMMERCIAL GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2024-2027'.

[6] On 16 June 2025 my Chambers wrote to the parties asking them to confirm the obvious error and inviting them to make an application under s.218A of the Act to vary the enterprise agreement to correct or amend an obvious error, defect or irregularity.

[7] The Construction, Forestry and Maritime Employees Union responded to my chambers on 16 June confirming the error and provided an updated copy of the Agreement. The Construction, Forestry and Maritime Employees Union did not provide any submissions in relation to s.218A of the Act. Subsequently, my chambers wrote back to the parties on 16 June indicating that the Agreement would be varied pursuant to s.218A(2)(a) of the Act.

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

"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."

[9] Considering s.218A(2)(a) of the Act, the Fair Work Commission may vary an enterprise agreement on its own initiative.

[10] I am satisfied that the agreement should be varied to correct the error in clause 1.1 of the Agreement so that the title of the Agreement is, SMART COMMERCIAL GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2024-2027.

[11] I order, pursuant to s.218A of the Act, that clause 1.1 of the Agreement be varied to correct the obvious error.

[12] The variation will operate from 17 June 2025.

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