Co-Operative Bulk Handling Limited T/A CBH Group

[2024] FWCA 1250

[2024] FWCA 1250

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Co-Operative Bulk Handling Limited T/A CBH Group

(AG2024/684)

CBH METRO GRAIN CENTRE COLLECTIVE UNION AGREEMENT 2023

Grain handling industry
COMMISSIONER WILSON	MELBOURNE, 8 APRIL 2024

Application for approval of the CBH Metro Grain Centre Collective Union Agreement 2023

Approval

1. An application has been made for approval of an enterprise agreement known as the CBH Metro Grain Centre Collective Union Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Co-Operative Bulk Handling Limited T/A CBH Group. The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 14 September 2023 and the Agreement was made on 23 February 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

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, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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 15 April 2024. The nominal expiry date of the Agreement is 5 November 2026.

Variation

1. 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.”

1. In recent decisions of the Fair Work Commission[2] (the Commission), it has been noted that 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 purpose of the section is to remove the complexity associated with varying enterprise agreements which contain an obvious error, defect or irregularity by creating a simpler process for corrections to be made.

1. Before an amendment under s.218A can be made, the Commission must first be satisfied that an obvious error, default or irregularity (whether in substance or form) exists. If it is found that such an error, default of irregularity exists, the Commission may (not must) vary the agreement.

1. The Applicant on 8 March 2024 made an application under s.218A of the Act to correct or amend two minor typographical errors in the Agreement, in Clause 3.7 and Clause 23.5.3.

2. I sought the views of the bargaining representatives on the s.218A application. The bargaining representatives consent to the variations being made.

1. For the reasons set out above, I am satisfied that the error in Clause 3.7 and Clause 23.5.3 are errors 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.

1. The variation sought will operate from the date the Agreement commences operation, 15 April 2024.

Order

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

1.   Clause 3.7 is varied by amending the reference to subclause “3.1” to subclause “3.2”; and

2.   Clause 23.5.3 is varied by amending the word “17rganization” to “organisation”.

1. The variation will operate from 15 April 2024.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

[2] 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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