HV Rail Pty Limited

[2023] FWCA 1776

[2023] FWCA 1776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

s.218A—Enterprise agreement

HV Rail Pty Limited

(AG2023/1699)

HV RAIL TERMINAL (QLD) ENTERPRISE AGREEMENT 2023

Rail industry
COMMISSIONER MIRABELLA	MELBOURNE, 19 JUNE 2023

Application for approval of the HV Rail Terminal (QLD) Enterprise Agreement 2023 - application to vary the HV Rail Terminal (QLD) Enterprise Agreement 2023 to correct or amend obvious error.

Approval

1. HV Rail Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the HV Rail Terminal (QLD) Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, 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. I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (the NES). However, noting clauses 2.2-2.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Rail, Tram and Bus Industry Union (the RTBU), 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 19 June 2023 and, in accordance with s.54 of the Act, will operate from 26 June 2023. The nominal expiry date of the Agreement is 31 August 2025.

Variation

1. In conjunction with the approval application, the Employer filed a Form F1 application seeking variation of the Agreement pursuant to s.218A of the Act. The Form F1 was signed by representatives of both the Employer and the RTBU.

1. The variation that is sought by the parties relates to clause 40.4 of the Agreement. Specifically, they seek the correction of an error in the first row, fifth column of the table therein. It is requested that where it says, “1 September 2023”, this should be amended to “1 September 2024” (the error).

1. Section 218A of the Act provides:

“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. Section 218A is a new provision of the Act. In Application by BHP Coal Pty Ltd,[1] Vice President Asbury noted the following regarding its insertion:

“[4] Section 218A is a new provision in the FW Act enacted by virtue of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The terms of s. 218A are substantially similar to those in s. 602 of the Act and the Explanatory Memorandum to the Bill states that s. 218A is intended fill a regulatory gap by extending the operation of the “slip rule” to correct or amend obvious errors, defects or irregularities, whether in substance or form, in enterprise agreements. The provision addresses a regulatory gap, as the existing “slip rule” in section 602 enables the FWC’s decisions, but not enterprise agreements, to be corrected.¹”

1. I am satisfied that the error identified by both parties is an obvious error and that I should exercise my discretion to vary the Agreement. There are no grounds of which I am aware that would tend against the exercise of my discretion to vary the Agreement. I propose to amend the error and order as such below.

1. The date of 1 September 2023 in the last column of clause 40.4 is clearly an error in that it should be a date 12 months from the preceding column, which also lists the date as 1 September 2023. The table in clause 40.2 increases by 12-month increments.

Order

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

1. In clause 40.4, delete “1 September 2023” in the first row, fifth column of the table and insert in its place “1 September 2024”.

1. The variation will operate from 19 June 2023.

COMMISSIONER

[1] Application by BHP Coal Pty Ltd [2023] FWCA 115.

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