Dhl Supply Chain (Australia) Pty Limited

[2024] FWCA 4399

[2024] FWCA 4399

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Dhl Supply Chain (Australia) Pty Limited

(AG2024/4453)

DHL SUPPLY CHAIN CONSUMER WESTERN SYDNEY – NSW ENTERPRISE AGREEMENT 2024

Storage services
COMMISSIONER P RYAN	SYDNEY, 10 DECEMBER 2024

Application for approval of the DHL Supply Chain Consumer Western Sydney – NSW Enterprise Agreement 2024

1. DHL Supply Chain (Australia) Pty Limited (Employer) has made an application for approval of an enterprise agreement known as the DHL Supply Chain Consumer Western Sydney – NSW Enterprise Agreement 2024 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

1. The Employer 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.

Sections 186, 187, 188 and 190

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the responses to issues identified, and the Statement of Principles.[1]

National Employment Standards

1. I observe that clause 34(b) of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 2.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining Representative

1. The United Workers’ Union (UWU) being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the UWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 17 December 2024. The nominal expiry date of the Agreement is 31 August 2027.

Section 218A variation to correct or amend errors, defects or irregularities

1. Section 218A of the FW Act provides:

(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. The Explanatory Memorandum for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 states:

775.     New subsection 218A(1) would empower the FWC, at its discretion, to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (ie without the need for a Full Bench appeal). For example, the FWC could correct typographical errors or obvious omissions. The FWC would be able to decide how corrections are made.

776.     This addresses a regulatory gap, as the existing ‘slip rule’ in section 602 enables the FWC’s decisions, but not enterprise agreements, to be corrected: see Advantaged Care Pty Ltd v Health Services Union [2021] FWCFB 453.”

1. On 14 November 2024, the Employer advised the Commission that due to a drafting error, the incorrect rates of pay tables were inserted into the Agreement.[2] The Employer provided correct rates of pay tables in a document titled Attachment C.   

1. After seeking the views of the parties, I am satisfied that this is an obvious error or defect as contemplated by s.218A and that I should exercise my discretion to amend the Agreement.

1. Accordingly, Attachment 1 Table 1 (p.36), Table 2 (p.37) and Table 3 (p.38) will be removed and replaced with the correct rates of pay tables provided to the Commission on 14 November 2024 in the document marked “Attachment C”. This variation will operate from 10 December 2024. 

COMMISSIONER

Annexure A

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

[2] See Attachment 1: Table 1 (p.36), Table2 (p.37) and Table 3 (p.38).

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