Grampians Wimmera Mallee Water Corporation T/A GWMWater

[2024] FWCA 920

[2024] FWCA 920

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Grampians Wimmera Mallee Water Corporation T/A GWMWater

(AG2024/400)

GWMWATER ENTERPRISE AGREEMENT 2023

Water, sewerage and drainage services
COMMISSIONER CONNOLLY	MELBOURNE, 18 MARCH 2024

Application for approval of the GWMWater Enterprise Agreement 2023

Approval

1. An application has been made for approval of an enterprise agreement known as the GWMWater Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Grampians Wimmera Mallee Water Corporation T/A GWMWater (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 29 February 2024.

1. The notification time for the Agreement under s.173(2) was 1 February 2023 and the Agreement was made on 14 February 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 1 March 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Casual conversion: Clause 9.5(e) appears to provide for casual conversion, however, it does not appear consistent with s.66B of the Act which provides that an employer must make an offer to a casual employee if the employee has been employed by the employer for a period of 12 months; and during at least the last 6 months, the employee has worked a regular pattern of hours on an ongoing basis.

1. Clause 1.4 of the Agreement acts as an effective NES precedence clause, in that it states that “this Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency”. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 13 March 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. The “The Australian Workers’ Union”, “Australian Municipal, Administrative, Clerical and Services Union”, “The Association of Professional Engineers, Scientists and Managers, Australia” and “CPSU, the Community and Public Sector Union” 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) of the Act I note that the Agreement covers these organisations.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 14 July 2027.

Variation

1. The Agreement lodged contained some incorrect clause references in Clause 46 and the Applicant has requested that I exercise the powers provided pursuant to s.218A of the Act to correct these obvious errors. The errors contained in Clause 46 of the Agreement are as follows:

1. Section 218A, which came into effect on 7 December 2022, is as follows:

“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; or

(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. As has been noted in recent decisions of the Commission,[2] s.218A of the Act is not unlike 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. Its evident purpose is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

1. Before an amendment under s.218A can be made, the Commission must first be satisfied of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may, not must, vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

1. I am satisfied that the existence of an error in Clause 46 of the Agreement which contains references to incorrect clauses is an obvious error. While section 218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, I am satisfied that the amendment should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act. In the present case, the error is readily identified, as is the correction needed to make the Agreement accurately reflect what was clearly intended. There are no reasons not to exercise my discretion and good reasons to do so. The error in the above clause will be amended to reflect the correct clause references provided by the Employer, as ordered below.

Order

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

1. By deleting the reference to “clause 11” in Clause 46 of the Agreement and replacing it with “clause 12”.

2. By deleting the references to “clause 9” in Clause 46 of the Agreement and replacing them with “clause 10”.

3. By deleting the reference to “clause 10” in Clause 46 of the Agreement and replacing it with “clause 11”.

4. By deleting the references to “clause 15” in Clause 46 of the Agreement and replacing them with “clause 16”.

5. By deleting the reference to “clause 16” in Clause 46 of the Agreement and replacing it with “clause 17”.

6. By deleting the reference to “clause 20” in Clause 46 of the Agreement and replacing it with “clause 21”.

7. By deleting the reference to “clause 14” in Clause 46 of the Agreement and replacing it with “clause 15”.

8. This variation will operate from 18 March 2024.

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 that included those to effect described above.

[2] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury

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