Co-operative Bulk Handling Limited T/A CBH Group

[2023] FWC 3219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Co-operative Bulk Handling Limited T/A CBH Group

(AG2023/4737)

CBH COUNTRY OPERATORS UNION COLLECTIVE AGREEMENT 2023

Grain handling industry
COMMISSIONER WILSON	MELBOURNE, 5 DECEMBER 2023

Application for variation of the CBH Country Operators Union Collective Agreement 2023

An application has been made for approval of a variation to the CBH Country Operators Union Collective Agreement 2023[1] (the Agreement) to correct or amend an error, defect or irregularity in the Agreement. The application is made pursuant to s.218A of the Fair Work Act 2009 (the Act). It has been made by Co-operative Bulk Handling Limited T/A CBH Group.

The Agreement was approved by the Fair Work Commission (the Commission) on 6 November 2023 and commenced operation on 13 November 2023. The Applicant submits that the Agreement contains an error, the details of which are set out and considered below.

Legislation

Section 218A provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:

“(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.”

Consideration

The Applicant submits there is defective wording in Clause 12.3 of the Agreement and applies under s.218A to correct an obvious error. It is submitted that “the Employer (CBH) and the Employee Union agreed that harvest casuals be excluded, but in an administrative oversight, that wording was not included when the Agreement went to the Commission.”[2]

Clause 12.3 currently reads:

“Where a shift worked is longer in duration than 10 hours Monday to Friday, Employees will be paid at the Hourly Additional Rate for the hours worked above 10 hours.”

The Applicant submits Clause 12.3 should read:

“Where a shift worked is longer in duration than 10 hours Monday to Friday, Employees (excluding harvest casuals) will be paid at the Hourly Additional Rate for the hours worked above 10 hours.”

I caused correspondence to be issued to The Australian Workers’ Union (AWU) on 4 December 2023 advising that I was disposed to grant the s.218A application subject to learning the views of the bargaining representatives on the subject. The bargaining representatives were asked to provide their consent to the application by 4.00PM AEDT Wednesday 6 December 2023.

The AWU confirmed on 4 December 2023 that it had no objection to the s.218A application.

Conclusion

For the reasons set out above, I am satisfied that the error in Clause 12.3 was an error within the meaning of s.218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the employer covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(i) of the Act.

The variation to the Agreement is to amend Clause 12.3 to read:

“Where a shift worked is longer in duration than 10 hours Monday to Friday, Employees (excluding harvest casuals) will be paid at the Hourly Additional Rate for the hours worked above 10 hours.”

The variation sought will operate from 5 December 2023. An order giving effect to this decision will be issued at the same time as this decision.

COMMISSIONER

[1] AE522170.

[2] Email to Fair Work Commission applying under s.218A for a variation, 30 November 2023.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission has approved an application by Co-operative Bulk Handling Limited T/A CBH Group to amend the CBH Country Operators Union Collective Agreement 2023. The application, made under section 218A of the Fair Work Act 2009, seeks to correct an error in Clause 12.3 of the Agreement, which addresses the payment of additional rates for shift hours exceeding 10 hours on weekdays. The employer contends that the clause erroneously includes harvest casuals in the scope of the additional rate payment, whereas the parties had agreed to exclude them. This oversight was attributed to an administrative error when the Agreement was submitted to the Commission for approval.

The Commission considered the application and sought the views of the bargaining representatives. The Australian Workers’ Union (AWU), representing the employees, indicated no objection to the proposed amendment. The Commissioner determined that the error in Clause 12.3 constituted an irregularity within the meaning of section 218A(1) of the Act. The application to vary the Agreement was made by the employer, fulfilling the requirements of section 218A(2)(b)(i) of the Act. Consequently, the Commission approved the amendment to Clause 12.3 to explicitly exclude harvest casuals from the additional rate payment for hours worked beyond 10 hours on weekdays.

The variation to the Agreement, which amends Clause 12.3, will take effect from 5 December 2023. An order formalising this decision will be issued concurrently with the publication of the decision. The approved amendment reads: "Where a shift worked is longer in duration than 10 hours Monday to Friday, Employees (excluding harvest casuals) will be paid at the Hourly Additional Rate for the hours worked above 10 hours." This decision rectifies the administrative error and ensures that the Agreement accurately reflects the original intentions of the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established