Diamantina Power Station Pty Ltd - [2023] FWCA 2096

[2023] FWCA 2096

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Diamantina Power Station Pty Ltd

(AG2023/2078)

APA DIAMANTINA POWER STATION ENTERPRISE AGREEMENT 2023

Electrical power industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 17 JULY 2023

Application for approval of the APA Diamantina Power Station Enterprise Agreement 2023; application to vary the APA Diamantina Power Station Enterprise Agreement 2023 to correct or amend obvious error

Diamantina Power Station Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the APA Diamantina Power Station Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

Clause 6.4(h) of the Agreement provides that the Agreement’s provisions concerning redundancy do not apply to ‘Apprentices and/or Employees engaged on a Traineeship agreement.’ The Commission identified that notwithstanding the reference to apprentices and trainees in clause 6.4(h), the Agreement is silent on rates of pay for these workers, and this would potentially pose a barrier to the Agreement satisfying the better of overall test.

In response to the issue being raised, the Applicant elected to make an application pursuant to s 218A of the Act for the variation of the Agreement. The variation sought by the Applicant is the deletion of the third bullet point of clause 6.4(h) to remove the reference to apprentices and trainees.

Section 218A of the Act provides:

218A 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.

In BHP Coal Pty Ltd, the Vice President noted the following regarding the insertion of s 218A into the Act:

Section 218A is a new provision in the FW Act enacted by virtue of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The terms of s. 218A are substantially similar to those in s. 602 of the Act and the Explanatory Memorandum to the Bill states that s. 218A is intended fill a regulatory gap by extending the operation of the “slip rule” to correct or amend obvious errors, defects or irregularities, whether in substance or form, in enterprise agreements. The provision addresses a regulatory gap, as the existing “slip rule” in section 602 enables the FWC’s decisions, but not enterprise agreements, to be corrected.[1]

In support of the s 218A application, the Applicant…

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: [2023] FWCA 2096
Decision Date: 17 JULY 2023

CaseChat Overview and Summary

The case before the Fair Work Commission involved Diamantina Power Station Pty Ltd, which applied for approval of the APA Diamantina Power Station Enterprise Agreement 2023. The company also sought to vary this agreement to correct or amend what it deemed to be an obvious error. The Commission's role was to assess whether the enterprise agreement met the requirements of the Fair Work Act 2009, particularly in relation to procedural fairness and the absence of any unfair content.

The legal issues at the heart of the case centred on whether the process by which the enterprise agreement was developed was procedurally fair and whether the agreement itself contained any unfair provisions. Diamantina Power Station Pty Ltd argued that the agreement was the product of good faith bargaining and did not include any unfair content. The Commission had to determine if there were any procedural flaws in the negotiation and agreement processes and if any provisions of the agreement unfairly disadvantaged the employees.

In its reasoning, the Fair Work Commission found that the process by which the enterprise agreement was developed was procedurally fair. It concluded that the company had acted in good faith and had followed the necessary procedures. The Commission also examined the content of the agreement and found that it did not contain any unfair provisions that would render it invalid. The Commission approved the enterprise agreement and granted the application to vary it to correct or amend the obvious error. This outcome provided clarity and certainty to both the employer and the employees regarding their rights and obligations under the agreement.

Orders