Co-Operative Bulk Handling Limited T/A CBH Group
[2023] FWCA 3672
•6 NOVEMBER 2023
| [2023] FWCA 3672 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Co-Operative Bulk Handling Limited T/A CBH Group
(AG2023/3721)
CBH COUNTRY OPERATORS UNION COLLECTIVE AGREEMENT 2023
| Grain handling industry | |
| COMMISSIONER WILSON | MELBOURNE, 6 NOVEMBER 2023 |
Application for approval of the CBH Country Operators Union Collective Agreement 2023 – s.218A variation to correct or amend obvious error, defect or irregularity.
Approval
An application has been made for approval of an enterprise agreement known as the CBH Country Operators Union Collective 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.
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.
Subject to the undertakings referred to above, 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.
The Australian Workers' Union (AWU) 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.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 November 2023. The nominal expiry date of the Agreement is 23 July 2026.
Variation
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.”
In recent decisions of the Fair Work Commission[1] (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.
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.
The Agreement lodged with the Commission contained typographical errors in Clauses 14.1.2 and 14.1.10.1. The parties also seek a variation to Clause 12.10 by adding a sub-clause to reflect the intention of the parties.
CBH Group and the AWU request that the Commission vary the Agreement to correct the errors in the specified clauses.
The AWU supports the variation and is of the view that the variations sought:
Do not disadvantage any employee by their variation
Removes ambiguity of the clauses between the parties and reduces the potential for disputes to arise as a result of these ambiguities
Addresses defects in the agreement as lodged as recognised by both parties
Is agreed by both CBH Group and the AWU.[2]
For the reasons set out above, I am satisfied that the errors in Clauses 12.10, 14.1.2 and 14.1.10.1 are 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 sought will operate from the date the Agreement commences operation, 13 November 2023.
Order
I order, pursuant to s.218A of the Act, that the Agreement be varied as follows:
Clause 12.10 is varied by adding a sub-clause. The clause as varied reads:
12.10 If a public holiday is worked, an Employee will be paid the Hourly Additional Rate for the hours worked as per clause 13 – Wages plus the hours worked at single time in lieu to a maximum of 8 hours (4 hours min). These hours can be used at a time mutually agreed with management so as to minimise the impact on the business.
12.10 .1 Not withstanding clause 12.10, Employees rostered onto a 12-hour shift on the even time roster shall receive 12 hours of time in lieu.
Clause 14.1.2 is varied by amending ‘Operators’ to ‘Operator’. The clause as varied reads:
14.1.2 To be eligible for the Inconvenience Allowance Employees must be employed as Receival Point Operator.
Clause 14.1.10.1 is varied by amending the reference to ‘clause 14.1.11.1’ to ‘clause 14.1.11’. The clause as varied reads:
14.1.10.1 on or after the date that this Agreement comes into operation, an Employee’s “Usual Place of Employment” shall be determined by the Employer at the time of employment in its absolute discretion, and may only be changed thereafter in accordance with clause 14.1.11;
COMMISSIONER
Annexure A
[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).
[2] Email from AWU to Fair Work Commission, 3 November 2023.
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