Focus Offshore Services Pty Ltd Trading AS Focus Offshore Services

FOCUS OFFSHORE SERVICES DRILLING ENTERPRISE AGREEMENT 2025

Variation of enterprise agreement - s218A - obvious error, defect or irregularity

[1] Focus Offshore Services Pty Ltd (Focus) has applied to vary the Focus Offshore Services Drilling Enterprise Agreement (the Agreement). The Application is made pursuant to s 218A of the Fair Work Act 2009 (the Act). Section 218A empowers the Commission to vary enterprise agreements to correct an 'obvious error, defect or irregularity'.

[2] In short, a rate of pay intended to take effect from 1 June 2025 was omitted from the text of the Agreement. Focus in its application recounts the bargaining process and consultation undertaken with the Australian Workers Union (AWU).

[3] The view of the AWU was sought in respect of the proposed variation. The AWU supports the variation and does not cavil with the explanation provided by Focus.

[4] The Application turns on whether I am satisfied the correction sought is one that is properly susceptible of variation under s 218A. The power in s 218A is comparable to that in s 602 of the act which is itself a statutory incarnation of the common law slip rule.

[5] In RotoMetrics Australia Pty Ltd v AMWU [2011] FWAFB 7214 (RotoMetrics) by a Full Bench of Fair Work Australia characterised s 602 in these terms at [29]:

Section 602 is intended to be a statutory analogue of the 'slip rule' used by superior courts to correct certain errors in orders. It must be applied with caution and only in circumstances in which the use of the 'slip rule' is permissible

[6] Full Benches of this Commission and its predecessors have cautioned against interfering too readily in the bargain struck by the parties. The process under s 218A is a purely administrative one without a democratic mandate.

[7] I am mindful that the 'slip rule' should always be exercised with caution and I have borne in mind the exhortation in RotoMetrics.

[8] I am also conscious that the proposed variation will be financially beneficial for the affected employees. Further, I note that the rates proposed in the variation reflect the reality of the arrangements currently in place.

[9] For the reasons above, I am satisfied that, having regard to the circumstances of the error it is appropriate that I exercise the discretion in s 218A to vary the Agreement to correct the error in the terms sought.

[10] I order that pursuant to s 218A of the Act the Agreement varied to reflect the form published with this decision to have effect on and from 31 March 2026.

Printed by authority of the Commonwealth Government Printer