Application for variation of the Programmed Rail Services (NSW) Safework Enterprise Agreement 2025

[1] Skilled Rail Services Pty Ltd has applied pursuant to s 218A of the Fair Work Act 2009 (Cth) to correct an obvious error in a decision issued on 22 April 2024 in [2024] FWCA 2528 (Approval Decision).

[2] The Approval Decision relates to the approval of the Programmed Rail Services (NSW) Safework Enterprise Agreement 2025 (Agreement). Skilled seeks that the Commission replace 'Schedule A - Casual Employees Overtime Rates' in the Agreement.

[3] The Australian Rail, Tram and Bus Industry Union (RTBIU / the organisation) is covered by the Agreement. The organisation does not object to the correction sought.

[4] The application seeks to vary the overtime rates applying to casual employees in Schedule A of the Agreement. The applicant seeks an order for the tables in Schedule A referring to the overtime rates applying to casual employees be deleted and replaced with the following:

[5] Skilled submits that the overtime tables for causal employees in Schedule A of the Agreement contains an obvious error, defect or irregularity. Specifically, as it relates to the incorrect dollar values inserted in the overtime tables in the Schedule, as those rates do not accurately reflect what was agreed upon between the parties.

[6] Skilled submits that at the time of drafting the schedule, the parties inserted overtime rates that erroneously compounded the casual loading twice. The effect of this error is that the casual loading has been applied a second time to the already loaded casual hourly rate and then multiplied by the penalty rate and submits that the error is apparent when the casual employee overtime rates are compared to the equivalent casual employee weekend and public holiday penalties outlined in the schedule.

[7] Skilled submits that these changes correct or amend the obvious errors and remove any ambiguity regarding the overtime tables for casual employees in Schedule A of the Agreement.

[8] Section 218A of the Act came into effect on Wednesday 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) and is as follows:

218A 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):

• (a) on its own initiative; or

• (b) on application by any of the following:

  • (i) one or more of the employers covered by the agreement;

  • (ii) an employee 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.

[9] The variation sought by the Applicant is to resolve an error with respect to the insertion of overtime rates that erroneously compounded the casual loading twice. In the circumstances, I am satisfied that it is appropriate for the Commission to vary the Agreement to make the changes set out at paragraphs [4]-[7] above.

[10] Based on the material before me, I am satisfied that the errors in the Agreement are obvious errors or irregularities within the meaning of s 218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the employer covered by the Agreement, in accordance with s 218A(2)(b)(i) of the Act. The variation will operate from 7 August 2025. An Order[1] giving effect to the variation is issued separately.

[11] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[1] PR794589.

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