Berri Pty Limited

[2023] FWCA 2423

[2023] FWCA 2423

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Berri Pty Limited

(AG2023/2395)

BEGA LEETON PRODUCTION & RELIABILITY ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER CRAWFORD	SYDNEY, 3 AUGUST 2023

Application for approval of the Bega Leeton Production & Reliability 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 Bega Leeton Production & Reliability Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer, Berri Pty Limited (Berri). The Agreement is a single enterprise agreement.

1. I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met.

1. Noting clause 5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union(AMWU) 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 AMWU.

1. The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 1 February 2026.

Variation

1. On 20 July 2023, Berri wrote to the Commission seeking a variation of the proposed Agreement pursuant to s.218A of the Act. Berri submitted the word ‘extra’ was erroneously included in clause 30.19 and constitutes an obvious error. Clause 30.19 prescribes an entitlement for employees required to hold themselves in readiness for work after ordinary hours. The rate prescribed is ‘50% extra of the Ordinary Rate of Pay’. Berri submitted that the word 'extra' does not appear in the corresponding existing provision, which is clause 17.7(a) of the Lion Dairy & Drinks Leeton Enterprise Agreement 2020, and that Berri and the AMWU did not seek a variation to this provision during the bargaining process. Berri also highlighted that the explanatory materials for the Agreement indicated no substantive change was proposed to the on-call provision. 

1. 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.”

1. As has been noted in recent decisions[1] of the Commission, s.218A of the Act is akin to 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.

1. Before an amendment under s.218A can be made, there first must be satisfaction 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.

1. On 28 July 2023, the AMWU wrote to the Commission and confirmed it consents to the proposed Agreement being varied to delete the word ‘extra’ from clause 30.19.

1. I am satisfied the inclusion of the word ‘extra’ in clause 30.19 of the Agreement is an obvious error and that I should vary the Agreement to delete the word ‘extra’ from clause 30.19. Berri and the AMWU agree the word ‘extra’ was erroneously included in clause 30.19 and the explanatory materials are consistent with this being the case. It does appear reasonably unlikely the provision would be intended to prescribe a higher rate for being on-call than would be payable for performing work.

Order

1. 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 word ‘extra’ from clause 30.19.

2.The variation will operate from seven days after the approval date of the Agreement.

COMMISSIONER

[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

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