GWA Group Limited T/A GWA Bathrooms and Kitchens

[2021] FWCA 446

[2021] FWCA 446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

GWA Group Limited T/A GWA Bathrooms and Kitchens
(AG2020/4027)

GWA BATHROOMS & KITCHENS (SOUTHERN REGION) ENTERPRISE AGREEMENT 2020

Storage services
DEPUTY PRESIDENT ASBURY	BRISBANE, 9 FEBRUARY 2021

Application for approval of the GWA Bathrooms & Kitchens (Southern Region) Enterprise Agreement 2020.

[1] GWA Group Limited T/A GWA Bathrooms and Kitchens (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the GWA Bathrooms & Kitchens (Southern Region) Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] In correspondence with the Company, I raised a number of concerns as to whether the Agreement passed the better off overall test (BOOT). Concerns were also raised that clauses 24 and 27.3(a) of the Agreement contain incorrect references to other clauses in the Agreement. The Applicant offered undertakings to address the BOOT issues and sought that the Commission correct the identified typographical errors pursuant to the power in s.586 of the Act to correct or amend an application or document.

[3] In Advantaged Health Care Pty Ltd v Health Services Union 1 a Full Bench of the Commission determined that the power in s. 602 of the Act for the Commission to an error in relation to its decisions, could not be exercised to correct an error in an enterprise agreement. Consistent with that Decision I consider that s. 586 cannot be used to correct an enterprise agreement after the agreement has been made. Generally, if the employer seeks a variation of the Agreement it may apply for such variation under s. 217 of the Act on the grounds that the variation would remove an ambiguity or uncertainty.

[4] However, in the present case, the typographical errors are in clauses dealing with dealing with overtime payments to employees for work outside the spread of ordinary hours and in relation to the additional week of leave for seven day shift workers. Those typographical errors give rise to concerns about whether the Agreement meets the requirements in s. 186(d) with respect to passing the better off overall test and the requirement in s. 196 in relation to shift workers which is found in Division E of Part 2 – 4. Accordingly, as provided in s. 190(1)(b) of the Act, both matters can be the subject of undertakings to address my concerns.

[5] Undertakings were provided by the Applicant in response to these matters. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[6] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement has been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[7] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[8] The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover that organisation. In accordance with s.201(2) of the Act, and based on the declaration provided by the organisation, I note that the Agreement covers this organisation.

[9] The Agreement is approved in accordance with s.54 of the Act and will operate from 16 February 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Annexure A.

 1   [2021] FWCFB 453.

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