Application for variation of the Venture Smart Enterprise Agreement 2023

[1] Ventia Pty Ltd (the Applicant), has applied under s.218A of the Fair Work Act 2009 (the Act) for the Commission to correct or amend an obvious error said to be in the Venture Smart Enterprise Agreement 2023 (the Agreement).

[2] Section 218A of the Act provides:

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):

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

(ii) an employee covered by the agreement; or

(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.

[3] Clause 2 of the Agreement lists Ventia Pty Ltd as the employer party to the Agreement. As an employer covered by an enterprise agreement may apply to the Commission to vary an enterprise agreement under s 218A(2)(b) of the Act, the Applicant has standing to make the application.

[4] As Deputy President Gostencnik observed in Metropolitan Memorial Parks Land Manager:

"Before the power conferred by s 218A may be exercised, an obvious error, defect or irregularity (whether in substance or form) must be identified. The error, defect or irregularity must be obvious in the sense that the error, defect or irregularity is easily perceived or understood, or is clear, self-evident, or apparent. A consideration of whether an error, defect or irregularity is obvious is not confined to the text of the agreement. An error, defect or irregularity may not be obvious on the face of the text of an agreement, but the error, defect or irregularity becomes clear or is easily understood when context or surrounding circumstances are examined. Once the error, defect or irregularity is identified, and the Commission is satisfied the error, defect or irregularity is obvious, the Commission has a discretion to vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity."[1]

[5] The Applicant submits that the error in the Agreement is to be found in cl.2 which deals with scope. That clause reads as follows:

2.1 The Parties ("Parties") covered by this Enterprise Agreement ("EA") are;

2.1.2 Employees of the Employer who are engaged in the classifications in Appendix 1 - Classifications & Career Development performing work within the scope of this Agreement ("Employees").

2.2 The scope of this Agreement shall be work in, or in connection with;

2.2.1 Traffic monitoring and control systems, intelligent transport systems, lighting, signage, security and monitoring systems;

2.2.2 Works and or services under the associated electrical and communications works related to the State-wide Electrical & ITS Contract (149/16) between Venture Smart, Main Roads Western Australia and related Roads and Infrastructure Assets.

2.2.3 Capital works scheduled and unplanned maintenance works and construction projects within the infrastructure sector in Western Australia.

2.3 Provided the terms of this Enterprise Agreement will have no application on any contract the Employer has where the Employer already has an approved Enterprise Agreement in place covering such work.

2.4 This Enterprise Agreement has no application to managerial, supervisory, clerical, Health, Safety and Environment (HSE) or administrative staff.

[6] The Applicant contends that the Agreement was intended to only apply to Venture Smart operations in Western Australia. While subclauses 2.2.2 and 2.2.3 are clearly restricted to Western Australia, subclause 2.2.1 has no geographic limitation. The potential issue that arises from this is submitted to be that as all employees of the Applicant are engaged by Ventia Pty Ltd, employees of the Applicant outside Western Australia could potentially be captured.

[7] The Applicant submitted a witness statement from its employee Mr Edward Djundja who is a Contract Manager based in Sydney. He states that there are employees of the Applicant in Sydney who perform work such as that described in cl.2.2.1 of the Agreement. Mr Djundja further states that to his knowledge those employees were not notified about the making of the Agreement and did not vote on its approval. I accept that Mr Djundja's statement is accurate.

[8] Further evidence for the Applicant was provided by Ms Sirena Collins, who describes the bargaining and approval process for the Agreement. That evidence is to the effect that the Agreement was intended to apply only in Western Australia and that only Western Australian employees were involved in the approval process. Ms Collins was the author of the Form F17 submitted with the approval paperwork and notes that on that form she indicated to the Commission that the Agreement would only apply in Western Australia. I accept that Ms Collins' statement is accurate.

[9] In addition, the Applicant submitted a copy of the Notice of Employee Representational Rights issued to employees to be covered by the Agreement and the Form F17A as lodged with the Commission. It is clear from those documents that the proposed coverage of the Agreement was to be restricted to Western Australia.

[10] The application seeks to make variations to cl.2 of the Agreement as emphasized below:

2.1 The Parties ("Parties") covered by this Enterprise Agreement ("EA") are;

2.1.2 Employees of the Employer who are engaged to perform work for Venture Smart in the classifications in Appendix 1 - Classifications & Career Development performing work within the scope of this Agreement ("Employees").

2.2 The scope of this Agreement shall be work in, or in connection with;

2.2.1 Traffic monitoring and control systems, intelligent transport systems, lighting, signage, security and monitoring systems in Western Australia;

2.2.2 Works and or services under the associated electrical and communications works related to the State-wide Electrical & ITS Contract (149/16) between Venture Smart, Main Roads Western Australia and related Roads and Infrastructure Assets.

2.2.3 Capital works scheduled and unplanned maintenance works and construction projects within the infrastructure sector in Western Australia.

2.3 Provided the terms of this Enterprise Agreement will have no application on any contract the Employer has where the Employer already has an approved Enterprise Agreement in place covering such work.

2.4 This Enterprise Agreement has no application to managerial, supervisory, clerical, Health, Safety and Environment (HSE) or administrative staff.

[11] Having reviewed the material submitted to the Commission I am satisfied that an error has been identified and that it should be corrected. Having formed this view I sought the views of the CEPU and AWU who were bargaining representatives for the Agreement regarding the variation sought by the Applicant. Neither union indicated any opposition to the correction being made.

[12] An order that the correction be made to the Agreement in the terms set out above in paragraph 10 will be issued.

[1] Metropolitan Memorial Parks Land Manager 2023 FWCA 4374 at [6].

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