Dialog Fitzroy Australia Pty Ltd
[2024] FWCA 3001
•14 AUGUST 2024
| [2024] FWCA 3001 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Dialog Fitzroy Australia Pty Ltd
(AG2024/2478)
DIALOG FITZROY AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2024
| Building, metal and civil construction industries | |
| COMMISSIONER P RYAN | SYDNEY, 14 AUGUST 2024 |
Application for approval of the DIALOG Fitzroy Australia Pty Ltd Enterprise Agreement 2024
Dialog Fitzroy Australia Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the DIALOG Fitzroy Australia Pty Ltd 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
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
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 Employer’s responses to issues identified, and the Statement of Principles.[1]
National Employment Standards
Noting clause 3.7 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.
Model Flexibility Term
The Agreement does not contain a flexibility term that meets the requirements of s.203 of the FW Act. Pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the FW Regulations is taken to be a term of the Agreement.
Approval
The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 21 August 2024. The nominal expiry date of the Agreement is 14 August 2028.
Section 218A variation to correct or amend errors, defects or irregularities
Section 218A of the FW Act provides:
The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).
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.
If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.
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.”
Clauses 12.2.1 and 12.2.2 of the Agreement each contain the wording “[TBC] 2024”.
I sought the views of the Employer and the Employee Bargaining Representatives who each confirmed that the clauses should refer to “26 August 2024”.
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.
Accordingly, clauses 12.2.1 and 12.2.2 of the Agreement are varied to remove “[TBC] 2024” wherever it appears and insert in each place “26 August 2024”. This variation will operate from 14 August 2024.
COMMISSIONER
[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.
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