Australian Postal Corporation t/a Australia Post
[2024] FWCA 3425
•11 OCTOBER 2024
| [2024] FWCA 3425 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Australian Postal Corporation t/a Australia Post
(AG2024/3287)
AUSTRALIA POST ENTERPRISE AGREEMENT 2024
| Postal services | |
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 11 OCTOBER 2024 |
Application for approval of the Australia Post Enterprise Agreement 2024
An application has been made for the approval of an enterprise agreement known as the Australia Post Enterprise Agreement 2024 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Australian Postal Corporation t/a Australia Post (Applicant). The Agreement is a single enterprise agreement.
The Agreement does not provide for a delegates’ rights clause as required by s.205A(1) of the Act. In accordance with s.201(1A), I note that clause 10A, Workplace delegates’ rights, in the Australia Post Enterprise Award 2015 is to be taken to be a term of the Agreement.
I also note that Clause 2.3.1 of the Agreement addresses any concerns in relation to potential inconsistencies between the terms of the Agreement, including in relation to clauses 20.5, 20.6 and 21, and National Employment Standards (NES).
The rates of pay and allowances payable under the Agreement are not set out in the Agreement itself but are contained in the Australia Post Human Resources Manual Rates of Pay Booklet September 2024 – September 2026 (Booklet). A copy of the Booklet was provided to the Commission. Without the details in the Booklet, it would not have been possible for the Commission to undertake the better off overall test as required by ss.186(2)(d) and 193. The rates and allowances in the Booklet are expressly incorporated into the Agreement by virtue of clause 39.3.3 and therefore form part of the Agreement. In those circumstances, I advised the parties that my preliminary view was that the Booklet, as well as the Agreement, should be published with any approval decision. I invited submissions about that proposed course.
The Applicant’s primary position was that the Booklet should not be published although the Applicant ultimately also advised that publication was not objected to if their submissions on the point were not accepted.
The Applicant referred to the competitive nature of the industry and to various competitors with agreements that did not expressly publish the rates of pay provided for in their agreements. The Applicant argued that the present situation was distinguishable from the circumstances in both AWU v Oji Foodservice Packaging Solutions Pty Ltd[1] (Oji) and Application by VIP Plastic Packaging Pty Ltd[2] because this was not a case involving the redaction of wage rates from an agreement or the non-inclusion/non-incorporation of those rates, but rather a question about the publication of rates that are expressly incorporated. I accept that to be the case. I also accept that the Booklet is readily accessible to employees of the Applicant, both new and existing, and their respective unions.
Section 601(4) of the Act provides as follows:
(4) The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:
(a) a decision that is required to be in writing and any written reasons that the FWC gives in relation to such a decision;
(b) an enterprise agreement that has been approved by the FWC under Part 2‑4.
The FWC must do so as soon as practicable after making the decision or approving the agreement.
In Oji the Full Bench observed that s.601(4)(b) was directed at the enterprise agreement ‘as made’ and noted that the agreement is made when it is approved by a vote of employees.[3] The Bench went on to point out that if the agreement as made does not include the details of signatories, the Commission was not compelled by s.601(4)(b) to publish those details although it may choose to do so.[4]
The employees were provided with access to the Booklet, amongst other things, before the start of the voting on the proposed agreement as required by paragraphs 4 and 5 of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (Statement of Principles). The agreement that was made when it was approved by the vote of employees expressly included the rates and allowances in the Booklet even though those rates were not set out, in terms, in the agreement itself. In substance if not in form, the contents of the Booklet formed part of the Agreement as made. Even if I were not required by s.601(4)(b) to publish the Booklet I think it is appropriate to do so having regard to the centrality of wages and allowances to the agreement that has been struck and their ‘obvious importance’ to employees[5]. I also consider that publication is consistent with the statutory direction in s.577(1)(c) that the Commission perform its functions and exercise its powers in a manner that is open and transparent. I therefore propose to publish the Booklet with this decision.
The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to the undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.
The Community and Public Sector Union - PSU Group, (CPSU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Communications Division (CEPU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Tasmania Branch (CEPU - TAS), Transport Workers’ Union of Australia (TWU) and the Australian Municipal, Administrative, Clerical and Services Union – Victorian Private Sector Branch (ASU), each lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the CPSU, CEPU, CEPU – TAS, TWU and ASU.
The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 9 October 2027.
An application has also been made by the Applicant to vary the terms of the Agreement under s.218A of the Act to correct an obvious error, defect or irregularity in the Agreement. The application seeks to remove the reference to ‘the previous twelve months’ in clause 15.6.1(b) of the Agreement and replace it with a reference to ‘the previous six months.’
The Applicant outlined the history of the negotiations for the provisions now appearing in clause 15.6.1(b). This included an account of the origin of the provision in question (which would require the Applicant to consider the hours worked by part-time employees over the previous six months, rather than the previous 12 months as is the case under the Australia Post Enterprise Agreement 2021, in any review of the hours of engagement of part-time employees) - as a claim from the CEPU. The Applicant advised that the claim had been accepted by the Applicant during negotiations on 2 July 2024 and formally accepted by correspondence on 5 July 2024.
The Applicant also submitted that following agreement between the parties on that term, the agreed term was, amongst other terms, publicised to employees during the course of negotiations as being an agreed item. Ultimately, the explanatory materials provided by the Applicant to the employees to describe the differences between the Agreement and the 2021 Agreement to satisfy the requirements of ss180(5) and 188 of the Act and paragraph 8 of the Statement of Principles, also included a reference to the agreed change which specified that the review was to consider hours worked over ‘the previous six months.’ The Applicant submitted that it was only shortly after the Agreement had been voted on by employees it was discovered that the document contained the incorrect reference to ‘the previous twelve months.’
The union bargaining representatives either consented to the application for variation, or did not oppose the application. Having regard to the uncontested account of events by the Applicant I am satisfied that the Agreement contains an obvious error within the meaning of s.218A and that I should exercise my discretion in favour of varying the Agreement to correct that error. As a consequence, clause 15.6.1(b) of the Agreement shall provide as follows:
‘(b) factors to be considered in the review process shall be the hours of duty worked over the previous six months (or since the employee started in the position, whichever is the lesser period) and known business/operational changes in the next six months;’
The Applicant submitted that the proposed variation should take effect from the date when the Agreement commences operation under the Act. I agree that the variation should operate from that date. In accordance with s.218A(3) the variation will operate on and from 18 October 2024. An order giving effect to this decision will be published separately.
DEPUTY PRESIDENT
Annexure A
[1] [2018] FWCFB 7501
[2] [2023] FWCFB 161.
[3] At [65] and [66].
[4] At [68].
[5] See VIP Plastic op cit, quoting Oji, at [11].
Printed by authority of the Commonwealth Government Printer
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