Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2024] FWCA 1657

[2024] FWCA 1657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(AG2024/1285)

APPLICATION FOR APPROVAL OF THE TOMLINSON ENERGY SERVICE PTY LTD (VICTORIA) ENTERPRISE AGREEMENT 2024-2027

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 6 MAY 2024

Application for approval of the Tomlinson Energy Service Pty Ltd (Victoria) Enterprise Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the Tomlinson Energy Service Pty Ltd (Victoria) Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The Agreement is a single enterprise agreement.

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 and 190 as are relevant to this application for approval have been met.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 28.1 - Public Holidays

·           Clause 12.8 – Abandonment of Employment

However, noting the undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 May 2024. The nominal expiry date of the Agreement is 31 March 2027.

Variation

1. On 3 May 2024 the Applicant made an application under s.218A of the Fair Work Act 2009 (Cth) to vary the enterprise agreement to correct or amend an obvious error, defect or irregularity.

1. The Applicant sought to vary the Agreement so that references at clauses 9.1.10 and 21.14 to ‘RCR Energy Service Pty Ltd’ are read as ‘Tomlinson Energy Services Pty Ltd’. The Applicant submits that this was a typographical error and represents an irregularity, error or defect.

1. Section 218A of the Act came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is as follows:

“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;

(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. Considering s.218A(2)(b)(i) of the Act, the Fair Work Commission may vary an enterprise agreement on application by one or more of the employers covered by the agreement.

1. I am satisfied that the agreement should be varied to correct the errors in the following terms:

·   At clause 9.1.10 of the Agreement, the reference to the ‘RCR Energy Service Pty Ltd’ will be read as ‘Tomlinson Energy Services Pty Ltd’.

·   At clause 21.14 of the Agreement, the reference to the ‘RCR’ will be read as ‘Tomlinson’.

Order

1. I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct the obvious errors by varying clauses 9.1.10 and 21.14.

1. The variation will operate from 6 May 2024.

COMMISSIONER

Annexure A

[1] PR774532.

Printed by authority of the Commonwealth Government Printer

<AE524523  PR774529>