Kimberly-Clark Australia Pty Limited T/A Kimberly-Clark Aust P/L

[2023] FWCA 956

[2023] FWCA 956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Kimberly-Clark Australia Pty Limited T/A Kimberly-Clark Aust P/L

(AG2023/825)

KIMBERLY-CLARK AUSTRALIA PTY LIMITED, MILLICENT MILL, PRODUCTION ENTERPRISE AGREEMENT 2022

Timber and paper products industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 31 MARCH 2023

Application for variation of the Kimberly-Clark Australia Pty Limited, Millicent Mill, Production Enterprise Agreement 2022

1. Kimberly-Clark Australia Pty Limited (Employer) has made an application to vary the Kimberly-Clark Australia Pty Limited, Millicent Mill, Production Enterprise Agreement 2022 (Agreement). The application was made under s.218A of the Fair Work Act 2009 (the Act).

1. The Agreement was approved on 16 March 2023 and commenced operation on 23 March 2023. The Employer submits that the version of the Agreement voted on by the covered employees contained errors in the dates in columns 3, 4 and 5 of the Table in Clause 21.8 and in the definition found at Clause 31.4.

1. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was given an opportunity to be heard in relation to the proposed variation of the Agreement and does not oppose the proposed variation.

Error or Defect and Amendment

1. The Employer seeks to vary the dates in columns 3, 4 and 5 of the Table in Clause 21.8 of the Agreement by replacing it with the following:

Allowances	3 JAN 2021	1 July 2022	1 July 2023	1 July 2024
Mileage Allowance (per kilometre)	$0.85	$0.88	$0.91	$0.93
Dirty Work (per day)	$3.29	$3.42	$3.54	$3.61
Call Out (per call out)	$479	$498	$515	$525
First Aid (Day Work)	$1,230	$1,279	$1,324	$1,350
First Aid (Continuous Shift Worker)	$1,471	$1,530	$1,584	$1,616
Operator Maintainer Level 2	$5,329	$5,542	$5,736	$5,851
Operator Maintainer Level 3	$9,117	$9,482	$9,814	$10,010
Operator Maintainer Level 4 / Tradesperson	$12,907	$13,423	$13,893	$14,171
KCA5 Crew Leader	4.5% of Annualised Wage
Relief Crew Leader	4% of Annualised Wage

1. The Employer seeks that Clause 31.4 of the Agreement be varied such that it reads as follows (added text underlined):

“31.4    Unplanned absence in this clause refers to an absence notified and applied for within 144 hours (6 days) of the absence. An absence and notified outside 144 hours is not considered an unplanned absence and the extra time provisions in this clause do not apply. To clarify the date and time of notification of any absence, the E-time recording of the date and time shall be taken as the date and time the request was made.”

Statutory Provisions

1. Section 218A 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:

“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;
(iii) an employee organisation covered by the agreement.

(2)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. The Explanatory Memorandum that supports the above-referred Bill relevantly states as follows:

“772. This part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:

·   simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and

·   provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.”

1. I am satisfied that the errors at Clauses 21.8 and 31.4 of the Agreement are obvious errors within the meaning of s.218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the representative of the employer covered by the Agreement (per s.218A(2)(b)(i)). The variation will operate from the date the Agreement commenced, being 23 March 2023.

1. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

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