Fair Work Act 2009

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

KELLY ELECTRICAL AND ETU MELBOURNE METRO TUNNEL ENTERPRISE AGREEMENT 2020-2023

Kelly Electrical and ETU Melbourne Metro Tunnel Enterprise Agreement 2020-2023

[1] An application has been made under s 218A of the Fair Work Act 2009 (Act) by the Trustee for the Kelly Discretionary Trust (ABN: 74 133 710 713) (Trustee) and Kelly Electrical Pty Ltd (ABN: 53 160 294 575) (Kelly Electrical) to vary the Kelly Electrical and ETU Melbourne Metro Tunnel Enterprise Agreement 2020-2023 (Agreement) in order to correct an error. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), which is covered by the Agreement, does not seek to be heard in relation to the application.

[2] The Agreement was approved under s 185 of the Act on 16 December 2022. The applicants contend that clause 1.1 of the Agreement contains an error, because it identifies the employer covered by the Agreement as the Trustee, when the correct employer is Kelly Electrical. The applicants submit that the Trustee was previously the employer of the relevant employees, but that on 1 July 2022 the employees accepted employment with Kelly. Negotiations for the Agreement commenced in October 2022. The vote occurred on 25 November 2022. The applicants submit that the text of the Agreement erroneously referred to the Trustee as the relevant employer, and that it should have been corrected prior to the vote to reflect the obvious and well-understood fact that the employees were now employed by Kelly Electrical rather than the Trustee. Due to an oversight, this did not occur.

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

"218A Variation of enterprise agreements to correct or amend errors, defects of 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;

(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."

[4] I am satisfied that the Agreement contains an error. Clause 1.1 identifies an entity that was not the correct employer at the time when the Agreement was made (the time of the vote - see s 182(1)). The Trustee was the former employer of the relevant employees. Kelly Electrical was their actual employer. I am also satisfied that the error is obvious. I accept the applicants' submission that the correct position was clear to all relevant employees at the time the Agreement was made.

[5] The error came to the attention of Kelly Electrical shortly after the vote, and before application was made to the Commission for approval of the Agreement under s 185. Kelly Electrical offered a pre-emptive undertaking to amend the name of the employer. However, the Commission can only accept an undertaking under s 190 if it has a concern that an agreement does not meet the approval requirements of ss 186 and 187. The Commission held no such concern and the undertaking was therefore declined. There was no doubt as to the identity of the true employer of the relevant employees. I note that the Commission accepted a different undertaking made in response to a concern raised by the Commission in respect of an approval requirement. That undertaking was given by the correct employer, Kelly Electrical.

[6] The Commission's discretion to vary the Agreement under s 218A has been enlivened. I consider it appropriate to vary the Agreement to correct the obvious error. It is desirable that the text of the Agreement accurately record the employer of the relevant employees.

[7] Clause 1.1 of the Agreement is varied to remove the words 'Kelly Discretionary Family Trust T/A Kelly Electrical (ABN: 74 133 710 713)' and to insert in their place the words 'Kelly Electrical Pty Ltd (ABN: 53 160 294 575)'. The variation operates from the date of this decision.

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