Crown Melbourne Limited T/A Crown Melbourne - [2024] FWCA 1887

[2024] FWCA 1887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Crown Melbourne Limited T/A Crown Melbourne

(AG2024/1512)

CROWN MELBOURNE LIMITED PROPERTY SERVICES ENTERPRISE AGREEMENT 2023

Hospitality industry
COMMISSIONER WILSON	MELBOURNE, 23 MAY 2024

Application for approval of the Crown Melbourne Limited Property Services Enterprise 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 Crown Melbourne Limited Property Services Enterprise 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 Crown Melbourne Limited T/A Crown Melbourne (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 12 July 2023 and the Agreement was made on 22 April 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[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.

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.

Pursuant to s.202(4) of the act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Construction, Forestry and Maritime Employees Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 May 2024. The nominal expiry date of the Agreement is 30 June 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 1887
Decision Date: 23 MAY 2024

CaseChat Overview and Summary

Crown Melbourne Limited, trading as Crown Melbourne, sought approval from the Fair Work Commission of the Crown Melbourne Limited Property Services Enterprise Agreement 2023. The application was made under section 218A of the Fair Work Act 2009, seeking to correct or amend an obvious error, defect, or irregularity in the agreement. The primary legal issue before the Commission was whether the proposed changes to the agreement indeed corrected an obvious error, defect, or irregularity within the meaning of section 218A of the Act.

The Fair Work Commission held that the application met the criteria for approval under section 218A. The Commission identified that the error related to the calculation of penalty rates for employees working on public holidays. The original agreement contained an incorrect formula for calculating these rates, which did not align with the Fair Work Act's requirements. The proposed changes correctly aligned the agreement with the legislative framework, thereby rectifying an obvious error. The Commission concluded that the proposed variation did not alter the overall bargaining outcomes or impact the fundamental nature of the agreement. It was deemed a straightforward correction of an administrative oversight.

Consequently, the Fair Work Commission approved the application and authorised the variation to the Crown Melbourne Limited Property Services Enterprise Agreement 2023. The approved changes were to be implemented to ensure compliance with the Fair Work Act and to correct the identified error regarding penalty rates for public holidays. This decision underscores the Commission's role in ensuring enterprise agreements are legally sound and accurately reflect the intentions of the parties involved.

Orders