ICM Agribusiness Pty Ltd T/A Peechelba Beef

[2024] FWCA 500

[2024] FWCA 500

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

ICM Agribusiness Pty Ltd T/A Peechelba Beef

(AG2024/39)

PEECHELBA BEEF AGREEMENT 2023

Agricultural industry
COMMISSIONER CONNOLLY	MELBOURNE, 5 FEBRUARY 2024

Application for approval of the Peechelba Beef Agreement 2023

Approval

1. An application has been made for approval of an enterprise agreement known as the Peechelba Beef Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by ICM Agribusiness Pty Ltd T/A Peechelba Beef (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 23 January 2024.

1. The notification time for the Agreement under s.173(2) was 13 December 2023 and the Agreement was made on 8 January 2024.  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] 

1. On 29 January 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the reference to the incorrect name of the Agreement (Peechelba Beef Workplace Agreement 2023) had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. There are three National Employment Standards (NES) issues that require comment:

·   Maximum weekly hours: Clause 11.1.2 of the Agreement provides that the average number of ordinary hours is 40 plus reasonable additional hours. This is inconsistent with s.62 of the Act which provides that an employer must not request or require an employee to work more than 38 hours for full time employees or the less of 38 hours and the employees’ ordinary hours for employees other than full time in a week unless the additional hours are reasonable.

·   Public holidays: Clause 13.5 of the Agreement allows for public holidays to be substituted by majority agreement rather than by agreement between an employee and employer, as provided by s.115(3) of the Act.

·   Family and domestic violence leave: Clause 20.1 provides for 5 days of unpaid leave which is a lesser entitlement than provided for under s.106A of the Act which provides for 10 days paid leave in a 12-month period.

1. Clause 2.3 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(s) will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 1 February 2024, and a copy is attached in Annexure A. No bargaining representatives were appointed.

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. 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 4 February 2028.

Variation

1. The Agreement lodged contained an error in the title of the Agreement, which was confirmed by the Applicant to refer to the incorrect title intended. The title of the Agreement provides the following:

“Peechelba Beef – Feedlot Workplace Agreement”.

1. This was inconsistent with the title of the Agreement referred to in the Form F16 application, the Form F17B declaration and the undertakings, dated 1 February 2024, which the Applicant confirmed referred to the correct title, being:

“Peechelba Beef Agreement 2023”.

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 the title of the Agreement which contains a reference to the incorrect name 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 Agreement will be amended to reflect the correct title 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 “Peechelba Beef – Feedlot Workplace Agreement” in the title of the Agreement and replacing it with “Peechelba Beef 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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