VENTIA TELECOMMUNICATIONS ENTERPRISE AGREEMENT 2024

Application for variation of the Ventia Telecommunications Enterprise Agreement 2024

[1] Ventia Pty Limited (the Applicant) has made an application pursuant to s 218A of the Fair Work Act 2009 (Cth) (the Act) to vary the Ventia Telecommunications Enterprise Agreement 2024 (the Agreement)[1] to correct or amend an error, defect or irregularity in the Agreement.

[2] The Agreement was approved by the Commission on 30 May 2024 and commenced operation on 6 June 2024.[2] The Applicant submits that the Agreement contains an error, the details of which are set out and considered below. The Agreement was made with and covers the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (CWU Division), being a bargaining representative for the Agreement. The CWU does not seek to be heard in relation to the application and is supportive of the application.

[3] The Applicant contends that the Agreement contains an error, because it identifies the

employer covered by the Agreement as Ventia Pty Limited, when the correct employer is 'Visionstream Pty Ltd' with ACN 062 604 193 (Visionstream). The Applicant submits the recording of the incorrect employing entity is an obvious error within the meaning of s 218A of the Act and was purely an oversight by those covered by the Agreement and not detected during the bargaining process.

[4] Briefly stated, I have considered it appropriate to vary the Agreement to correct, what I consider to be, an obvious error. It is proper that the text of the Agreement accurately reflects the employer of the relevant employees. To achieve that outcome, the name of the Applicant (Ventia Pty Limited) where referenced at clause 2 of the Agreement, is replaced with the employer of the relevant employees, Visionstream Pty Ltd (ACN 062 604 193), and Visionstream Pty Ltd (ACN 062 604 193) will be referred to as "Ventia" and/or the "Company" in the Agreement. Furthermore, clause 3 of the Agreement will be amended to reflect that the Agreement shall apply to work undertaken in Australia and its Territories by Ventia Telecommunications sectors and its employees 'who are employed by Visionstream Pty Ltd'.

[5] As to how an enterprise agreement was bargained for, made and then approved in circumstances where the incorrect employer is named in the Agreement, the Applicant provides the explanation that follows. However, before providing detail of that explanation, I observe that the explanation has been similarly adopted for the Applicant's application to vary the Ventia Telecommunications Fieldwork Agreement 2024.[3] It too, is plagued by the same obvious error and is addressed in decision [2025] FWCA 2774.

[6] On or around June 2020, the Applicant acquired Visionstream by acquiring the shares in the company. As part of this transaction, Visionstream employees remained employed by Visionstream but formed part of the Applicant group. To date, the employees have not been transferred to Ventia and indeed, continue to be employed by Visionstream.

[7] The Applicant submits that bargaining for the Agreement commenced in or around October 2023, and during that bargaining period, the Applicant, as the parent entity, coordinated and negotiated the Agreement with the employees' representatives and relevant stakeholders.

[8] The Applicant clarified that despite this, the only employees that the Agreement purported to cover and who were engaged throughout the bargaining process were employed by Visionstream. Furthermore, submits the Applicant, it was mutually understood between the negotiating parties that the purpose of bargaining and ultimately the Agreement, was to provide coverage for the telecommunications work being performed nationally by the eligible employees employed by Visionstream. This type of work is not performed by the Applicant's employees.

[9] The Applicant provided a list of the 38 employees employed by Visionstream who the Applicant claims are covered by the Agreement, and a sample of the employment contracts and payslips of some of those same employees.

[10] Bargaining for the Agreement is said to have proceeded with the incorrect entity being recorded in the proposed Agreement and supporting materials (for example, the Notice of Employee Representational Rights (NERR)).

[11] The Applicant submits that employees of Visionstream who perform the work covered by the Agreement were provided with NERRs in relation to the Agreement, were represented by the CEPU (CWU Division), attended information sessions about the Agreement, were issued ballot notices and voted on the Agreement. In contrast, no employees of the Applicant received NERRs, were represented in bargaining, attended information sessions, were issued ballot notices, or voted on the Agreement.

[12] According to the Applicant, the Agreement is in the same template form and format to previous agreements the relevant employees of Visionstream had been subject to, for over two decades.

[13] Section 218A of the Act, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:

(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.

[14] The Explanatory Memorandum (EM) that supports the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 relevantly states as follows:

772. This part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:

• simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and
• provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.

[15] As was observed in Victorian Hospitals' Industrial Association,[4] it is apparent from the text of s 218A and the supporting EM that s 218A is intended to overcome the statutory limitation imposed by s 602 of the Act that was identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union.[5] In that decision the Full Bench confirmed that the Commission could not amend the text of an agreement to correct an obvious error, defect or irregularity pursuant to s 602 of the Act and that other provisions within the Act, ss 210 or 217, might be used to rectify such error, defect or irregularity.[6] In Victorian Hospitals' Industrial Association, the Commission, however, acknowledged that there were certain limitations in respect of ss 210 or 217 insofar as varying an agreement to address an obvious error and that s 218A conferred an additional discretion for the Commission to amend an error, defect, or irregularity in an agreement, be that in form or substance.[7]

[16] The contended error, which was not identified until after the Agreement was approved, is arguably an obvious error of substance. A demonstrated error of the kind described would, in my view, fall within the scope of s 218A of the Act, as was the case in Kelly Electrical Pty Ltd (Kelly).[8] Whilst in Kelly the error, that is the naming of an incorrect employing entity, was identified after the agreement was made but prior to the approval of the agreement in question, that the Agreement has been approved does not preclude the making of the correction sought. Section 218A of the Act is absent words of limitation that the power to correct an obvious error is limited to circumstances prior to the Commission's approval of an enterprise agreement. As was identified in the EM, it is contemplated that the section applies in circumstances where an enterprise agreement has been inadvertently submitted to, and approved by, the Commission, inclusive of the obvious error.

[17] Clause 2 of the Agreement 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) of the Act). The Applicant was the 'parent entity' of Visionstream. The evidence demonstrates that Visionstream was the actual employer of the employees covered by the Agreement. I accept the Applicant's submissions and evidence that the correct position was clear to all relevant employees at the time the Agreement was made.

[18] Having regard to the above, I am satisfied that the inadvertent reference to the Applicant in clause 2 of the Agreement, and thereafter throughout the Agreement, was an error that arose during drafting of the Agreement prior to the ballot for approval of the Agreement.

[19] 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. That variation will see the employer of the relevant employees, Visionstream, named as a party under the Agreement in clause 2 instead of Ventia Pty Ltd, and clause 3 of the Agreement amended to reflect that the Agreement shall apply to work undertaken in Australia and its Territories by Ventia Telecommunications sectors and its employees 'who are employed by Visionstream Pty Ltd' (as set out in paragraph [4] of this decision). An order[9] to this effect will issue concurrently with this decision.

[20] The variation operates from the date of this decision.

[2] Ventia Pty Ltd [2024] FWCA 1964.

[4] [2022] FWCA 4390, [9].

[5] [2021] FWCFB 453.

[7] [2022] FWCA 4390, [10].

[8] Application by the Trustee for Kelly Discretionary Trust [2023] FWC 294.

[9] PR790865.

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