Allianz Technology SE
[2025] FWCA 802
•5 MARCH 2025
| [2025] FWCA 802 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Allianz Technology SE
(AG2024/5273)
ALLIANZ TECHNOLOGY SE ENTERPRISE AGREEMENT 2024
| Banking finance and insurance industry | |
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 5 MARCH 2025 |
Application for approval of the Allianz Technology SE Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Allianz Technology SE Enterprise Agreement 2024 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.
The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:
(a) cause financial detriment to any employee covered by the Agreement; or
(b) result in substantial changes to the Agreement.
The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.
Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.
Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.
The Agreement is approved and, in accordance with section 54 of the Act, will operate from 26 March 2025. The nominal expiry date of the Agreement is 31 December 2027.
The Finance Sector Union of Australia, being a bargaining representative for the Agreement, has given notice to the Fair Work Commission that it wants the Agreement to cover it. In accordance with s 201(2) of the Act, I note that the Agreement covers the Finance Sector Union of Australia.
Variation application
An application was also made pursuant to s 218A of the Act to vary the Agreement to correct or amend an obvious error, defect or irregularity in the Agreement.
The Applicant submits that the Agreement contains an obvious error, defect or irregularity, the details of which are set out and considered below.
Statutory Provisions
Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, provides for the variation of an enterprise agreement 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);
(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.
The Explanatory Memorandum (EM) that supports the above-referred Bill 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.
Consideration
The Applicant seeks to vary the contents page of the Agreement as follows:
a) delete the line in the Contents page '5.3 Recording of hours' and renumber the subsequent clauses as clauses 5.3 to 5.7 respectively;
b) amend the line in the Contents page for '6.15 Product and technical support Information Technology Employees' by deleting the line ‘Product and technical support Information Technology Employees’ and replacing it with the words ‘On call allowance’; and
c) Delete the line in the Contents page '7.16 Employees previously under the Territory Insurance Office Collective Agreement 2017' and renumber the subsequent clauses as clauses 7.16 to 7.18 respectively.
The Applicant seeks to vary the clause numbering of the Agreement as follows:
a) Clauses 4.4.1 'Content' to 4.4.6 'Exchange of data' to be renumbered as clauses 4.3.1 'Content' to 4.3.6 'Exchange of data' respectively;
b) Clause 5.4.1 'Ordinary hours' to be renumbered as clause 5.3.1 'Ordinary hours';
c) Clauses 5.5.1 'Application' to 5.5.4 'Time off in lieu' to be renumbered as clauses 5.4.1 'Application' to 5.4.4 'Time off in lieu' respectively;
d) Clauses 5.6.1 'Overtime meal breaks' and 5.6.2 'Meal Allowance' to be renumbered as clauses 5.5.1 'Overtime meal breaks' and 5.5.2 'Meal Allowance' respectively; and
e) Clauses 5.8.1 'Direction to work on Saturday or Sunday' and 5.8.2 'Ordinary work pattern on a Saturday or Sunday' to be renumbered as clauses 5.7.1 'Direction to work on Saturday or Sunday' and 5.7.2 'Ordinary work pattern on a Saturday or Sunday' respectively.
The Applicant seeks to vary cross references to the above clauses as follows:
a) cross-references in clauses 3.1 'Full-time employment' and 3.2(a) 'Part-time employment' to clause 5.4.1 'Ordinary hours' be amended to clause 5.3.1 'Ordinary hours';
b) cross-reference in clause 5.4.1 (a)(ii) 'Application' to ordinary hours prescribed in 'clause 5.4.1' be amended to clause 5.3.1;
c) cross-reference in clause 5.4.2(c) 'Payment for overtime' to overtime work described in 'clause 5.5.1(a)' be amended to clause 5.4.1(a);
d) cross-reference in clause 5.4.4(a) 'Time off in lieu' to a particular amount of overtime that has been worked by the employee per 'clause 5.5.1' be amended to clause 5.4.1;
e) cross-reference in clause 5.4.4(e) 'Time off in lieu' to time off in lieu that has not been taken by the employee within the period of 4 weeks specified in clause '5.5.4(d)' be amended to clause 5.4.4(d);
f) cross-references in clause 5.6(d) 'Evening work' that the additional payment for work between these hours is in lieu of and not in addition to the payment of overtime in 'clause 5.5.2' and the taking of time off in lieu in 'clause 5.5.4' be amended to clauses 5.4.2 and 5.4.4;
g) cross-references in clause 5.7.2(d) 'Ordinary work pattern on a Saturday or Sunday' that the additional pay for work on a Saturday and / or Sunday is in lieu of and not in addition to the payment of overtime in 'clause 5.5.2' and the taking of time off in lieu in 'clause 5.5.4' be amended to clauses 5.4.2 and 5.4.4;
h) cross-reference in clause 6.5 'Remuneration Review poll information' to clause 6.3(b)(i) be amended to clause 6.3(b); and
i) cross-reference in clause 11.6 'Annual meeting' to clause 4.4.6 be amended to clause 4.3.6.
The Applicant seeks to vary clause 6.2(a) of the Agreement by deleting the word “direction” and replacing it with the word “discretion”.
The Applicant also seeks to vary clause 6.3(b) of the Agreement by deleting the third reference to “2026” and replacing it with “2027”.
The Applicant also seeks to vary the Agreement by deleting a blank table which appears in clause 10.1.1(a) of the Agreement.
In relation to the contents page, clause numbering and cross referencing outlined at [12]–[14] above, the Applicant submits that the variations sought are minor and typographical errors, and that the errors should be fixed in order to make the clause numbering and cross referencing consistent throughout the Agreement for readability and ease of understanding.
In relation to the spelling error outlined at [15] above, the Applicant submits that clause 6.2(a) of the Agreement contains a typographical error in that it references the Applicant’s “direction” rather than “discretion” in the Remuneration review process.
In relation to the third reference to 2026 at clause 6.3(b) outlined at [16] above, the Applicant submits that the third reference to 2026 is an obvious error, and that the intention of the clause is to provide a pool to fund wage increases for each calendar year 2025, 2026, and 2027. The Applicant further submits that it is apparent from reading the entirety of clause 6.3(b) of the Agreement that any wage increases were intended to be annual in each of 2025, 2026, and 2027.
In relation to clause 10.1.1 as outlined at [17] above, the Applicant submits that the blank table contained at clause 10.1.1 is an obvious error and that it is apparent from reading clause 10.1.1 that the table does not need to be included in the Agreement.
As Deputy President Masson sets out in Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026 [2022] FWCA 4390:
[9] 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 most recently identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union[1] (Advantaged Care). 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.
[10] There are limitations to the use of ss. 210 and 217 of the Act in varying an agreement to address an obvious error, defect or irregularity. For example, it may be considered costly and impractical to conduct a ballot of employees for the purpose of obtaining approval for the variation of an agreement pursuant to s. 210 of the Act, where the variation sought is not substantive. Section 217 might also not be amenable to correcting an obvious error, defect or irregularity where the error does not create uncertainty or ambiguity. It is accepted that s. 218A confers an additional discretion for the Commission to amend an error, defect, or irregularity in an agreement, be that in form or substance.
In the present case the contended errors are as follows:
a) a failure to accurately number the clauses contained in the contents page of the Agreement;
b) a failure to accurately number the clauses contained in the Agreement;
c) a failure to accurately cross-reference clauses contained in the Agreement;
d) a spelling error at clause 6.2 of the Agreement;
e) a failure to correctly refer to the third in a series of years at clause 6.3(b) of the Agreement; and
f) a failure to omit a blank table contained at clause 10.1.1 of the Agreement.
The errors were not identified until after the voting process was completed and are clearly errors of substance and omission.
Conclusion
For the reasons advanced by the Applicant and as set out above, I am satisfied that the errors in the Agreement are obvious errors 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 an employer covered by the Agreement, thus satisfying the requirements of s 218A(2)(b)(i) of the Act. Having regard to all the circumstances, I am satisfied that it is appropriate to exercise my discretion to vary the Agreement to correct the obvious errors identified by the Applicant.
The variation sought will operate from 26 March 2025. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
Annexure A
[1] [2021] FWCFB 453.
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