Avard Employee Group Pty Ltd

[2023] FWCA 2171

[2023] FWCA 2171

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Avard Employee Group Pty Ltd

(AG2023/1801)

A’VARD EMPLOYEE COLLECTIVE AGREEMENT 2023 - 2027

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 13 JULY 2023

Application for approval of the A’Vard Employee Collective Agreement 2023 – 2027

Approval

1. An application has been made pursuant to s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the A’Vard Employee Collective Agreement 2023 – 2027 (Agreement).

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 20 July 2023. The nominal expiry date of the Agreement is 13 July 2027.

Variation

1. Application has also been made to vary the Agreement under s 218A of the Act to correct or amend an obvious error, defect or irregularity in clause 19.1.1 of the Agreement by amending it from:

Employees will be paid a meal allowance for each four hours after 9.5 hours on a particular day.

To:

All employees will be paid a meal allowance after 9.5 hours on any workday  - and then every 4 hours after this.

1. 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):

(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.

1. Section 218A of the Act is akin to the slip rule found in s 602 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. Section 218A was inserted by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Amendment Act), which received royal assent on 6 December 2022 and commenced in part the following day. Part 17 of Schedule 1 of the Amendment Act commenced on 7 December 2022. In the result s 218A of the Act commenced on that day. 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.

1. The Employer submits that clause 19.1.1 is ambiguous and should have read that employees will be paid a meal allowance after 9.5 hours and then every found hours after this.

1. Although I do not consider that the text of clause 19.1.1 is ambiguous, I accept that it does not reflect its intended operation and in this respect clause 19.1.1 contains an obvious drafting error. The proposed correction is beneficial in that an employee will be entitled to a paid meal break after 9.5 hours of work in a day as well as every four hours of work thereafter on that day. The current drafting provides only for the latter not the former.

1. I consider that the error should be corrected by varying the Agreement. There are no grounds of which I am aware which would tell against the exercise of my discretion to vary the Agreement. I propose to amend the Agreement to correct clause 19.1.1.

Order

1. I order, pursuant to s 218A of the Act, that the Agreement be varied as follows:

1.   Replace the current clause 19.1.1 with the words “All employees will be paid a meal allowance after 9.5 hours on any workday – and then every 4 hours after this”.

DEPUTY PRESIDENT

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<AE520757  PR764212>

Annexure A