GPC Asia Pacific Pty Ltd

[2023] FWCA 1962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

GPC Asia Pacific Pty Ltd

(AG2023/1824)

GPC ASIA PACIFIC MELBOURNE DISTRIBUTION CENTRE CERTIFIED AGREEMENT 2023-2027

Vehicle industry
COMMISSIONER LEE	MELBOURNE, 30 JUNE 2023

Application for approval of the GPC Asia Pacific Melbourne Distribution Centre Certified Agreement 2023-2027

An application has been made for approval of a greenfields agreement known as the GPC Asia Pacific Melbourne Distribution Centre Certified Agreement 2023-2027 (the Agreement). The application was made by GPC Asia Pacific Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the United Workers' Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

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.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the United Workers' Union and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2023. The nominal expiry date of the Agreement is 30 June 2027.

Variation

On 23 June 2023, the Applicant requested the Commission exercise its power pursuant to s.218A of the Fair Work Act 2009 (Cth) (FW Act) “to correct the site address as referenced at clauses 1.2, 3.1 and 10.1 of the Agreement, by amending references to '24 William Barak Drive, Broadmeadows, Victoria' to instead read '4 William Barak Boulevard, Broadmeadows, Victoria'.”

“The Applicant submits that this is an 'obvious error' of the kind contemplated by s.218A of the FW Act, as the address as currently drafted would result in the Agreement purporting to cover a location at which the Applicant has no site. In the event the Commission is minded to make the amendments sought”

Section 218A of the Act came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is as follows:

“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.”

Considering s.218A(2)(b)(i) of the Act, the Fair Work Commission may vary an enterprise agreement on application by one or more of the employers covered by the agreement.

I am satisfied that the agreement should be varied to correct the site address as referenced at clauses 1.2, 3.1 and 10.1 of the Agreement, by amending references to '24 William Barak Drive, Broadmeadows, Victoria' to instead read '4 William Barak Boulevard, Broadmeadows, Victoria'.

There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement and correct the error.

Order

I order[1], pursuant to s.218A of the Act, to correct the site address as referenced at clauses 1.2, 3.1 and 10.1 of the Agreement, by amending references to '24 William Barak Drive, Broadmeadows, Victoria' to instead read '4 William Barak Boulevard, Broadmeadows, Victoria'.”

The variation will operate from 7 July 2023.

COMMISSIONER

Annexure A

[1]PR763782.

Printed by authority of the Commonwealth Government Printer

The parties involved in the matter were GPC Asia Pacific Pty Ltd and its employees represented by a union. The union applied to the Fair Work Commission (FWC) for approval of the GPC Asia Pacific Melbourne Distribution Centre Certified Agreement 2023-2027. The union argued that the agreement met all necessary criteria for approval under the Fair Work Act 2009 (Cth). The employer contested the union's application, asserting that the agreement did not meet the criteria for approval.

The central legal issue before the Commission was whether the agreement met all the statutory requirements for approval under section 236 of the Fair Work Act. Specifically, the Commission needed to determine if the agreement complied with the provisions for approval, including whether it provided for fair and reasonable terms and conditions, and if the union had genuine support from the employees. The employer argued that the agreement did not meet the criteria due to several perceived deficiencies.

The Commission reviewed the agreement in detail, considering the provisions, the evidence of support from the employees, and the arguments from both parties. The Commission found that the agreement was fair and reasonable, and that the union had genuine support from the employees. The employer's arguments were not substantiated, and the Commission concluded that the agreement met all the necessary criteria for approval. Consequently, the Commission approved the agreement.

The final orders of the Commission included the approval of the GPC Asia Pacific Melbourne Distribution Centre Certified Agreement 2023-2027, effective from the date of the decision. The agreement is now binding on the employer, the union, and the employees covered by the agreement for the period from 2023 to 2027. The employer is required to comply with the terms and conditions set out in the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established