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Macneil Group Pty Ltd T/A Macneil Group [2023] FWCA 2629 (21 August 2023)

Last Updated: 22 August 2023

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement
Macneil Group Pty Ltd T/A Macneil Group

(AG2023/2603)

MACNEIL GROUP PTY LTD ENTERPRISE AGREEMENT 2023

Application for approval of the Macneil Group Pty Ltd Enterprise Agreement 2023 – s.218A variation to correct or amend obvious error.

Approval

[1] An application has been made for approval of an enterprise agreement known as the Macneil Group Pty Ltd Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Macneil Group Pty Ltd T/A Macneil Group (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 8 August 2023.

[3] The notification time for the agreement under s.173(2) was 14 June 2023 and the Agreement was made on 25th July 2023. Accordingly, the tests the agreement is to be assessed under are those applying after 6 June 2023. On 11 August 2023, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

[4] I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.

Variation

[6] The Agreement lodged contained an error in Clause 5.1.3 and Clause 7.6. The clauses provide the following:

“5.1.3. Casual Employment

A casual employees shall mean an employee engaged on an occasional basis and whose work pattern is not regular or systematic. A casual employee will receive a loading of 25% in addition to the rates prescribed in Clause Error! Reference source not found. as their ordinary rate. This rate will compensate for annual leave, personal/carer’s leave, notice of termination, redundancy and any other permanent entitlements that do not apply to casuals. A casual employee shall be entitled to a minimum engagement of four (4) hours for all work performed. The casual conversion provisions of the Modern Award shall apply.”

“7.6. Shift Work

...

Any absence from work for reason of inclement weather, public holiday/s, RDO/s and/or any leave prescribed in Clause Error! Reference source not found. of this Agreement occurring during shift work will still count towards five (5) continuous shifts worked. These absences will not be treated as a break in the continuous shifts worked.”

[7] On 11 August 2023, my Chambers wrote to the parties raising these errors and seeking further clarification on what these references ought to be. On 16 August 2023, the Employer confirmed that it was a mistake and filed an undertaking correcting the referencing errors in the above clauses.

[8] On 18 August 2023, my Chambers wrote to the parties and advised that I intended to amend the clauses on my own initiative pursuant to s.218A of the Act as an ‘obvious error’ rather than through the provision of an undertaking pursuant to s.190. Parties were provided an opportunity to provide submissions if they disagreed with this proposed course of action.

[7] Section 218A, which came into effect on 7 December 2022, 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; 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.”

[9] As has been noted in recent decisions of the Commission,2 s.218A of the Act is not unlike the slip rule found in s.602 of the Act 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. Its evident purpose 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.

[10] Before an amendment under s.218A can be made, the Commission must first be satisfied of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

[11] I am satisfied that the existence of an error in Clause 5.1.3 and Clause 7.6 of the Agreement in place of a clause reference is an obvious error. While section 218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied that the amendment should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the error is readily identified, as is the correction needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The errors in the above clauses will be amended to reflect the correct clause references provided by the Employer, as ordered below.

Order

[12] I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error as follows:

1. By deleting the reference to “Error! Reference source not found.” in Clause 5.1.3 of the Agreement and replacing it with “Clause 6.1”.
   
2. By deleting the reference to “Error! Reference source not found.” in Clause 7.6 of the Agreement and replacing it with “Clause 8”.
   
3. The variation will operate from 21 August 2023.
   

COMMISSIONER

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