Coles Group Supply Chain Pty Ltd T/A Coles Group Limited
[2024] FWCA 2132
•13 JUNE 2024
| [2024] FWCA 2132 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Coles Group Supply Chain Pty Ltd T/A Coles Group Limited
(AG2024/1621)
COLES EDINBURGH PARKS DISTRIBUTION CENTRE & SDA ENTERPRISE AGREEMENT 2024
| Retail industry | |
| COMMISSIONER CONNOLLY | MELBOURNE, 13 JUNE 2024 |
Application for approval of the Coles Edinburgh Parks Distribution Centre & SDA Enterprise Agreement 2024
Approval
An application has been made for approval of an enterprise agreement known as the Coles Edinburgh Parks Distribution Centre & SDA Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Coles Group Supply Chain Pty Ltd T/A Coles Group Limited (the Applicant). The Agreement is a single enterprise agreement.
The matter was allocated to my Chambers on 22 May 2024.
The notification time for the Agreement under s.173(2) was 15 March 2024 and the Agreement was made on 1 May 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]
On 28 May 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.
In particular, a concern was raised in relation to Casual Team Members in training and whether they would be considered better off overall regarding certain deficiencies in weekend penalties and overtime. On 6 June 2024, the Applicant made the following submissions:
“Whilst Coles is not opposed, if required, to provide an undertaking, we submit that Coles does not directly employ any casual team member in training employees within the Edinburgh Parks distribution centre that falls within the coverage of the EA 24. It also does not intend to employ any such casual team member in training employees in the future. Therefore, for the purposes of section 193(1) of the FW Act, casual team member in training employees are not ‘award covered employees’ or ‘reasonably foreseeable employees’, meaning there is no relevant employee who would not be better offer overall.
Further, pursuant to section 193A(6)-(6A) of the FW Act, the FWC may only have regard to types of employment that are ‘reasonably foreseeable at the test time’, having regard to the nature of the enterprise to which the agreement relates. Of course, should Coles directly engage such a casual team member in training employee in the future, the FWC’s new powers to reconsider whether an enterprise agreement passes the better off overall test during the life of an agreement under Division 7A of Part 2-4 of the FW Act could be enlivened on application by Coles, an employee or an employee organisation at that time.”
I have accepted these submissions and note that should circumstances change with regard to their engagement of such casual team members in training, the parties may make an application to the Commission for a reconsideration of the BOOT pursuant to s.227A of the Act.
The “Shop, Distributive and Allied Employees Association”, 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) of the Act I note that the Agreement covers this organisation.
I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 July 2024. The nominal expiry date is 30 June 2028.
Variation
On 30 May 2024, the Applicant advised my Chambers that the Agreement lodged contained clerical errors in clauses 8.1 and 8.7 relating to allowance amounts specified within tables and a cross referencing error in clause 12.2.7. Pursuant to s.218A, they made an application for a correction or amendment to these errors with the consent and support of the SDA.
In response, I sought an updated copy of the Agreement be provided along with a tracked changes version identifying the corrections made to the Agreement. On 5 June 2024, the following was provided:
· Form F1-5.6.24
· Updated Clean Version - Proposed Coles Edinburgh Parks Distribution Centre SDA Enterprise Agreement 2024
· Updated Tracked Version - Proposed Coles Edinburgh Parks Distribution Centre SDA Enterprise Agreement 2024
Section 218A, which came into effect on 7 December 2022, is as follows:
“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; or
(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,[2] s.218A of the Act is not unlike 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. 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.
Before an amendment under s.218A can be made, the Commission must first be satisfied 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.
I am satisfied that the existence of the errors outlined in paragraph [10] above are obvious errors. While section 218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied that the amendment should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the error is readily identified, as is the correction needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The errors above will be amended to reflect the correct amounts and clause references provided by the Employer, as ordered below.
Order
I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error in accordance with the variations outlined in paragraphs [10] and [11] above.
The variations will operate on and from 1 July 2024.
As the Applicant has submitted a copy of the Agreement with the variations, the Agreement, as varied, will be published with this Decision.
COMMISSIONER
[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 that included those to effect described above.
[2] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury
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