Application for variation of the Eris Projects Pty Ltd AMWU, AWU and ETU Offshore Greenfields Agreement 2025 for Allseas Support Vessels Working on Gippsland Campaign One (1)Platform and Jacket Preparation for Removal and Demolition (Campaign 1).

[1] Eris Projects Pty Ltd (the Applicant), has applied under s 218A of the Fair Work Act 2009 (the Act) for the Fair Work Commission (FWC) to correct or amend an obvious error said to be in the Eris Projects Pty Ltd AMWU, AWU and ETU Offshore Greenfields Agreement 2025 for Allseas Support Vessels Working on Gippsland Campaign One (1) Platform and Jacket Preparation for Removal and Demolition (Campaign 1). (the Agreement).

[2] Section 218A of the Act provides:

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; or

(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.

[3] Clause 3 of the Agreement states in part that the Agreement covers Eris Projects Pty Ltd. As an employer covered by an enterprise agreement may apply for the Commission to vary an enterprise agreement under s 218A(2)(b) of the Act, the Applicant has standing to make the application.

[4] As Deputy President Gostencnik observed in Metropolitan Memorial Parks Land Manager:

"Before the power conferred by s 218A may be exercised, an obvious error, defect or irregularity (whether in substance or form) must be identified. The error, defect or irregularity must be obvious in the sense that the error, defect or irregularity is easily perceived or understood, or is clear, self-evident, or apparent. A consideration of whether an error, defect or irregularity is obvious is not confined to the text of the agreement. An error, defect or irregularity may not be obvious on the face of the text of an agreement, but the error, defect or irregularity becomes clear or is easily understood when context or surrounding circumstances are examined. Once the error, defect or irregularity is identified, and the Commission is satisfied the error, defect or irregularity is obvious, the Commission has a discretion to vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity."[1]

[5] The Applicant submits that there are two errors in the Agreement. The first is that the table at cl.35.2 on page 23 of the Agreement provides hourly rates of pay that include the hourly Site Allowance provided for at cl.54 on page 34, which is $3.43 at the time of this decision. The Applicant submits that the Site Allowance should not be included in the hourly rates as it is paid separately.

[6] The second error is that the two tables at cl.53 on page 33 of the Agreement also provide hourly rates of pay that include the hourly Site Allowance from cl.54 - being a repeat of the first error identified above. The Applicant has submitted corrected versions of the three tables which remove the Site Allowance payment from the hourly rates of pay. These corrected versions are included as annexures to this decision.

[7] The Applicant contends that this was a genuine error which was only identified after the Agreement was approved. The Agreement is expressed to cover the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU), the Australian Workers' Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). I contacted each of those unions and they all expressed support for this application, with the AMWU and CEPU further confirming that there had been a genuine error.

[8] While s 218A of the Act does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied that an error has been identified, and the corrected tables provided by the Applicant will correct that error. An order giving effect to those variations will be issued and an updated version of the Agreement will replace the version as approved.

[1] Metropolitan Memorial Parks Land Manager 2023 FWCA 4374 at [6].

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