Hanson Construction Materials Pty Ltd

[2023] FWCA 2784

[2023] FWCA 2784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hanson Construction Materials Pty Ltd

(AG2023/2825)

HANSON TASMANIA AGREEMENT 2022

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 6 SEPTEMBER 2023

Application for approval of the Hanson Tasmania Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Hanson Tasmania Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hanson Construction Materials Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

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

1. 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.

1. The Transport Workers Union of Australia 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) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 September 2023. The nominal expiry date of the Agreement is 30 November 2026.

Variation

1. On 21 August 2023, the Applicant submitted that there were typographical omissions of two classifications on page 15: Clause 12 – Rates of Pay. The table should have included classification levels for “Laboratory Tester” and “Driver Batcher/Relief Batcher”. Taking into consideration s.218A of the Act, I have determined to vary the enterprise agreement to correct or amend the errors.

1. 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.”

1. Considering s.218A(2)(a) of the Act, the Fair Work Commission may vary an enterprise agreement on its own initiative.

1. I am satisfied that the agreement should be varied to correct the obvious error by including the classification levels for “Laboratory Tester” and a “Driver Batcher/Relief Batcher” at page 15: Clause 12 – Rates of Pay.

1. 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

1. I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error by including the classification levels for “Laboratory Tester” and “Driver Batcher/Relief Batcher” at page 15: Clause 12 – Rates of Pay.

1. The variation will operate from 13 September 2023.

COMMISSIONER

Annexure A

[1] PR765925.

Printed by authority of the Commonwealth Government Printer

<AE521326  PR765674>