KDR Victoria Pty Ltd T/A Yarra Trams
[2024] FWCA 507
•7 FEBRUARY 2024
| [2024] FWCA 507 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
KDR Victoria Pty Ltd T/A Yarra Trams
(AG2024/27)
YARRA TRAMS ENTERPRISE AGREEMENT 2023 – ROLLING STOCK, ADMINISTRATION, TECHNICAL & PROFESSIONAL
| Passenger vehicle transport (non rail) industry | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 7 FEBRUARY 2024 |
Application for approval of the Yarra Trams Enterprise Agreement 2023 - Rolling Stock, Administration, Technical & Professional
An application has been made for approval of an enterprise agreement known as the Yarra Trams Enterprise Agreement 2023 - Rolling Stock, Administration, Technical & Professional (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by KDR Victoria Pty Ltd T/A Yarra Trams. The Agreement is a single enterprise agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.
I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.
The Association of Professional Engineers, Scientists and Managers, Australia (APESMA), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Australian Rail, Tram and Bus Industry Union (ARTBIU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) being the bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations. The AMWU, CEPU, ARTBIU and APESMA support approval of the Agreement. The APESMA and ARTBIU are of the view that the Agreement passes the better off overall test.
I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):
· Clause 15 – Abandonment of employment.
However, noting clause 2.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 February 2024. The nominal expiry date of the Agreement is 30 June 2027.
Variation
An application was simultaneously lodged with the Agreement, which sought to vary provisions of the Agreement pursuant to section 218A of the Act (the Application).
The Application highlighted errors within the Agreement that had been identified by the Applicant as outlined in their tracked changes version of the Agreement, filed as attachment 7a (Variations).
The employee bargaining representatives were consulted regarding the Variations and have not raised any issues with the Commission.
I am satisfied that s.218A applies to the Variations.
Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity:
“(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.”
As has been noted in recent decisions of the Commission,[1] s.218A of the Act is akin to 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. The evident purpose of s.218A 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, there first must be satisfaction 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.
The Applicant submits that the amendments seek to address typographical and formatting errors including the inclusion of a ‘DRAFT’ watermark; Various errors in internal clause number cross-references; Some typographical and numbering errors in the indexes and other numbering; Formatting errors (e.g., missing full stops, and repeated words); and Some incorrect figures for allowances which are less than they should be – that is, the value of some allowances are slightly higher than they appeared in the voting version.
I am satisfied that the Variations are obvious errors. I am satisfied the amendments 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 errors are readily identified, as are the corrections needed to make the Agreement accurately reflect what was clearly intended. APESMA and the CEPU support the Applicant’s s.218A request. There are no reasons not to exercise my discretion and good reasons to do so. The Variations above will be amended as per the order.
Order
I order, pursuant to s.218A of the Act, that the Agreement be varied in accordance with the Variations.
The variations pursuant to s.218A above will operate from 14 February 2024.
The Applicant has simultaneously submitted a copy of the Agreement with the Variations. The Agreement, as varied, will be published with this Decision.
DEPUTY PRESIDENT
[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).
Printed by authority of the Commonwealth Government Printer
<AE523447 PR770967>
0
0
0