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

Application for variation of the McColl's Operations Gippsland Dairy Transport Agreement 2024

• [1] McColl's Operations Pty Ltd (Applicant) has made an application under s.218A of the Fair Work Act 2009 (the Act) to vary the McColl's Operations Gippsland Dairy Transport Agreement 2024 to 2027 (the Agreement) to correct an error. The error is said to be the date appearing in clause 1.5 of the Agreement.

"This Agreement commences seven days after approval of the Fair Work Commission and will remain in force until 30 June 2026."

• [3] The application seeks a variation of clause 1.5 to replace the date "30 June 2026" with "30 June 2027". The Applicant submits that the parties bargained for and agreed on an expiry date of 30 June 2027 which is reflected in the title of the Agreement.

• [4] Section 218A of the Act is akin to the slip rule found in s.602 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. Section 218A was inserted by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (Amendment Act). It is evident the purpose of s.218A of the Act 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.

• [5] The Agreement was approved on 6 November 2024 and came into operation on 13 November 2024. Clause 1.1 Title relevantly states that the Agreement is to be known as the McColl's Operations Gippsland Dairy Transport Agreement 2024 to 2027 (emphasis added). Clause 1.5 Period of Operation provides that the Agreement will remain in force until 30 June 2026 (emphasis added). The Applicant submits this is an obvious error arising from there being several iterations of the Agreement as a consequence of a number of unsuccessful votes being held during the lengthy negotiations.

• [6] The Applicant submits the previous draft at clause 1.5 of the Agreement provided that the Agreement would remain in force until three years after the commencement date. However, a key claim of the employee bargaining representatives was that the Agreement would have an expiry date of "30 June 2027" as opposed to expiring "three years after the commencement date".

• [7] The employee bargaining representatives claim and the Applicant's response to the claim is evidenced in the multiple documents associated with the bargaining process filed in support of the application. Those documents include the Applicant's internal Steering Committee's endorsement that the Agreement would have a nominal expiry date of "30 June 2027" and Meeting Minutes from a bargaining meeting held on 15 August 2024 which record the Applicant conceding to the employee bargaining representatives claim for a 3-year Agreement. This was subsequently recorded in the "Offer" document on 9 September 2024 which accompanied the suite of documents sent to employees at the beginning of the access period immediately preceding the successful vote.

• [8] The Agreement covers the Transport Workers' Union of Australia (TWU). On 12 March 2025 I sought the views of the TWU and invited it to make submissions. I advised the TWU if it did not object and did not seek to be heard, in the absence of any objection I would determine the matter on the materials before me. On 18 March 2025 the TWU advised my chambers that it did not object to the Application. The TWU made no objection to the matter being determined on the materials before me.

• [9] The materials filed also included signed statements from two bargaining representatives Mr Garry Falls and Mr Cam Mahoney. Each of the bargaining representatives state that "it was understood and agreed by the bargaining group that the Agreement was intended to remain in force until 30 June 2027". I have taken those statements into consideration.

• [10] Taking into consideration the title of the Agreement and the materials filed it is obvious that the Agreement expiry date was incorrectly recorded in the version of the Agreement approved by this Commission. I am therefore satisfied that was an error within the meaning of s.218A (1) of the Act. I am satisfied that the amendment should be made, and that is appropriate to do so by varying the Agreement pursuant to s.218A of the Act.

• [11] Pursuant to s.218A of the Act, I order that the Agreement be varied to correct the obvious error so that the nominal expiry date that appears in clause 1.5 being "30 June 2026" be corrected and replaced by "30 June 2027". The variation shall operate from 20 March 2025.

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