Greenham Tasmania Pty Ltd
[2024] FWCA 431
•1 FEBRUARY 2024
| [2024] FWCA 431 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Greenham Tasmania Pty Ltd
(AG2023/5416)
GREENHAM TASMANIA PTY LTD MEAT PROCESSING ENTERPRISE AGREEMENT 2023
| Meat Industry | |
| COMMISSIONER CONNOLLY | MELBOURNE, 1 FEBRUARY 2024 |
Application for approval of the Greenham Tasmania Pty Ltd Meat Processing Enterprise Agreement 2023
Approval
An application has been made for approval of an enterprise agreement known as the Greenham Tasmania Pty Ltd Meat Processing Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Greenham Tasmania Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
The matter was allocated to my Chambers on 12 January 2024.
The notification time for the Agreement under s.173(2) was 8 August 2023 and the Agreement was made on 12 December 2023. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]
On 18 January 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.
There are four National Employment Standards (NES) issues that require comment:
· Public holiday substitution: Clause 23 states that ‘we can, in consultation with and by agreement with you, substitute any of the above days on the site as a whole department/ plant and/or Employee or a group of Employees.’ This may be inconsistent with s115 of the Act, which provides for substitution between the employer and individual employee only.
· Personal/carer’s leave notice: Clause 25 states that ‘you must advise your absence at the earliest opportunity but not less than an hour before your scheduled start time.’ This appears inconsistent with s.107(2)(a) of the Act which states that notice must be given to the employer as soon as practicable (which may be a time after the leave has started). Furthermore, the Agreement clause appears to only provide a total of 2 days unpaid carer’s leave whereas s.102 of the Act provides 2 days unpaid leave per occasion.
· Compassionate Leave: Clause 27 appears to be silent on the ability to take compassionate leave in cases of stillbirth or miscarriage as provided by s.104 of the Act.
· Deductions on termination: Clause 35 states that ‘any debt owed to the business at the time of resignation or termination, must be repaid in full from your final pay.’ As it does not specify if this deduction would be from the employee’s wages only it raises an issue of deductions being made from the employee’s entitlements under the NES.
Clause 3 of the Agreement acts as an effective NES precedence clause, in that it states that “Where a provision of the NES is more generous than the Agreement, the NES will prevail”. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.
The Applicant has provided written undertakings, dated 25 January 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.
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.
The “The Australasian Meat Industry Employees Union”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.
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.
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 7 February 2027.
Variation
The Agreement lodged contained an error in Clause 2 which contained a reference to the incorrect year in the title of the Agreement. The section of Clause 2 which contains the error provides the following:
“This Agreement is called the Greenham Tasmania Pty Ltd Meat Processing Enterprise Agreement 2024…”
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.”
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.
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.
I am satisfied that the existence of an error in Clause 2 of the Agreement which contains a reference to the incorrect year in the title of the Agreement. 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 title of the Agreement provided by the Employer, as ordered below.
Order
I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error as follows:
- By deleting the reference to “Greenham Tasmania Pty Ltd Meat Processing Enterprise Agreement 2024” in Clause 2 of the Agreement and replacing it with “Greenham Tasmania Pty Ltd Meat Processing Enterprise Agreement 2023”.
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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