Cape Byron Management Pty Ltd

[2024] FWCA 835

[2024] FWCA 835

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Cape Byron Management Pty Ltd

(AG2023/5538)

CAPE BYRON MANAGEMENT ENTERPRISE AGREEMENT 2024 -2028

Electrical power industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 6 MARCH 2024

Application for approval of the Cape Byron Management Enterprise Agreement 2024 - 2028

Approval

1. Cape Byron Management Pty Ltd applies under s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the Cape Byron Management Enterprise Agreement 2024 - 2028 (Agreement).

1. 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 (Cth) is taken to be a term of the Agreement.

1. Clause 30.2 under the heading ‘Personal/Carer’s leave and compassionate leave’ is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 13 March 2024. The nominal expiry date of the Agreement is 13 March 2028.

Variation

1. The employer applies under s 218A of the Act for the Commission to vary the Agreement to correct or amend clause 15.2 of the Agreement by deleting the text in strikethrough below:

“The Employer may introduce new roles or classification titles from time to time. Where a new role is introduced, the applicable Classification will be identified according to the Classification Schedule at Appendix B. Nothing in the introduction of a new role or title shall have the effect of expanding the definition of Employee in clause 3 of this Agreement.”

1. Section 218A of the Act provides:

“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;

(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 error at clause 15.2 of the Agreement is a defect or irregularity where the words “or classification titles” have inadvertently been included.

1. The error at clause 15.2 of the Agreement should be corrected by varying the Agreement. No affected employees have raised any concerns with the employer’s variation application. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement. I propose to amend the error identified above and order as such below.

Order

1. I order, pursuant to s 218A of the Act, that the Cape Byron Management Enterprise Agreement 2024 – 2028 (Agreement) be amended by deleting “or classification titles” where it appears in clause 15.2 of the Agreement.

1. The variation will operate from 13 March 2024.

DEPUTY PRESIDENT

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