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

1. 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.

1. 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]

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. 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.

1. 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.

1. 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

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 14 May 2024 made an application under s.218A of the Act to correct or amend minor administrative errors in the contents page of the Agreement. The contents page of the Agreement was not updated to accurately reflect all the clauses contained in the Agreement.

1. I sought the views of the Bargaining Representatives on the s.218A application. No Bargaining Representative objected to the variations being made.

1. For the reasons set out above, I am satisfied that the errors in the contents page of the Agreement 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 variations sought will operate from the date the Agreement commences operation, 30 May 2024.

Order

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

1.   The contents page of the Agreement is varied to include:

·clause 5 (Better Off Overall);

·clause 7 (Access to this Agreement and the NES);

·clause 9 (Probationary and qualifying periods of employment); and

·clause 11 (Income Protection Insurance). 

1. The variation will operate from 30 May 2024. The published Agreement will contain the corrections described in the above order.

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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