KOMATSU MINING ROCKHAMPTON ENTERPRISE AGREEMENT 2024

Application for variation of the Komatsu Mining Rockhampton Enterprise Agreement 2024 - consent variation - application granted.

[1] Joy Global Australia Pty Ltd Trading AS Komatsu (the Applicant) has applied pursuant to s.218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Komatsu Mining Rockhampton Enterprise Agreement 2024 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.

[2] The Agreement was approved by the Commission on 17 October 2024 and commenced operation on 24 October 2024. The Applicant is an employer covered by the Agreement and has standing pursuant to s218A(2)(b)(i). The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are employee bargaining representatives covered by the Agreement.

[3] A Form F1 was lodged with the application which sought to vary provisions of the Agreement pursuant to section 218A of the Act (the Form).

[4] The Form highlighted errors within Appendix A which affected the wage rates for the C6 classification as outlined in Q2.1 of the Form.

[5] I am satisfied that s.218A applies to the variations at paragraph 4 of this Decision.

[6] Section 218A provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:

"(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."

[7] As has been noted in recent decisions of the Commission,[1] s.218A of the Act is akin to the slip rule found in s.602 of the Act, which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The evident purpose of s.218A is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

[8] Before an amendment under s.218A can be made, there first must be satisfaction of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

[9] The Applicant submits that the amendments seek to address miscalculations in Appendix A - Wages and Allowances, Table 1: Adult hourly wage rates (4% increase) and Table 1: Adult hourly wage rates (3% increase) for the C6 classification which means that the rate tables do not accurately reflect the intended uplifts in Year 2 and Year 3. It says that this results in a reduction in rates but that this reflects the rates negotiated. The Applicant submits that the amendments are confirmed by consent of the employee delegates and the AMWU and CEPU and reflect the agreed rates, avoiding any costs to the business other than as negotiated.

[10] On 24 June 2024, my chambers wrote to the AMWU and CEPU, seeking their views in relation to the application. The AMWU and CEPU advised that they support the application and consent to the variations sought.

[11] I am satisfied that the errors in the Agreement outlined at paragraph 4 of this Decision are obvious errors. I am satisfied the amendments should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A(1) of the Act. In the present case, the errors are readily identified, as are the corrections needed to make the Agreement accurately reflect what was clearly intended in the agreement between the parties. The reasons set out in the Application form a consent basis and support the exercise of my discretion to correct the errors. The errors identified at paragraph 4, will be amended as per the order.

I order, pursuant to s.218A(1) of the Act, that Appendix A of the Agreement be amended as outlined in Annexure A in lieu of the current C6 rate in Table 1: Adult hourly wage rates (4% increase) and Table 1: Adult hourly wage rates (3% increase). These rows replace the rows in the tables applicable from 4 July 2025 and 4 July 2026 respectively.

[12] The variations pursuant to s.218A(1) above will take effect from 4 July 2025 and the amendment will operate from the date of today's decision, 29 May 2025.

Year 2 (applicable from 4 July 2025): Appendix A - Wages and Allowances, Table 1: Adult hourly wage rates (4% increase)

Year 3 (applicable from 4 July 2026): Appendix A - Wages and Allowances, Table 1: Adult hourly wage rates (3% increase)

[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

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