Cardinia Shire Council
[2024] FWCA 3617
•17 OCTOBER 2024
| [2024] FWCA 3617 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Cardinia Shire Council
(AG2024/3556)
CARDINIA SHIRE COUNCIL ENTERPRISE AGREEMENT 2024
| Local government administration | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 17 OCTOBER 2024 |
Application for approval of the Cardinia Shire Council Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Cardinia Shire Council Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cardinia Shire Council. The Agreement is a single enterprise agreement.
The Notice of Representational Rights (NERR) distributed to employees is a pre-reform version. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departure from the NERR requirements under s.174 of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.
The Australian Municipal, Administrative, Clerical and Services Union (ASU), the Australian Nursing and Midwifery Federation (ANMF) and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA), being the bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations. The ANMF support approval of the Agreement.
I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):
· Clause 33(k)(i).
However, noting clause 28 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.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 October 2024. The nominal expiry date of the Agreement is 30 June 2027.
Variation
The Applicant has simultaneously sought to vary provisions of the Agreement pursuant to section 218A of the Act (the Variation).
The Applicant highlighted errors at clause 26(k) of the Agreement and now seeks for the clause to read as follows:
Plant & Tool Allowance
i.Outdoor employees whose roles require them to drive vehicles and operate plant and equipment, and to carry out routine maintenance and/ or minor running repairs will be automatically entitled to and receive a weekly allowance as prescribe in the Schedule of Allowances (Appendix 1).
ii.Routine maintenance and minor running repairs must be completed to a satisfactory standard on plant or equipment as agreed by the employer.
iii.The Plant and Tool Allowance will be paid on any period of authorised leave.
I am satisfied that s.218A applies to the variations at paragraph 7 above.
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) Act 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:
“(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.”
As has been noted in recent decisions of the Commission,[1] 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. The evident purpose of s.218A 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.
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.
The Applicant submits that the amendments seek to address minor administrative errors and that employees were advised of the error and the amendments during the access period.
I am satisfied that the minor administrative errors in the Agreement outlined at paragraph 7 of this Decision are obvious errors. I am satisfied the amendments should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. There are no reasons not to exercise my discretion and good reasons to do so. The errors identified at paragraph 7 will be amended as per the order.
Order
I order, pursuant to s.218A of the Act, that the Agreement be varied as follows:
Plant & Tool Allowance
i.Outdoor employees whose roles require them to drive vehicles and operate plant and equipment, and to carry out routine maintenance and/ or minor running repairs will be automatically entitled to and receive a weekly allowance as prescribe in the Schedule of Allowances (Appendix 1).
ii.Routine maintenance and minor running repairs must be completed to a satisfactory standard on plant or equipment as agreed by the employer.
iii.The Plant and Tool Allowance will be paid on any period of authorised leave.
The variations pursuant to s.218A above will operate from 24 October 2024.
DEPUTY PRESIDENT
[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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