Longwarry Food Park Pty. Ltd. - [2024] FWCA 987

[2024] FWCA 987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Longwarry Food Park Pty. Ltd.

(AG2024/258)

LACTALIS LONGWARRY FOOD PARK ENTERPRISE BARGAINING AGREEMENT 2023 - 2027

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT BELL	MELBOURNE, 20 MARCH 2024

Application for approval of the Lactalis Longwarry Food Park Enterprise Bargaining Agreement 2023 – 2027- s.218A variation to correct or amend obvious error or irregularity.

An application has been made for approval of an enterprise agreement known as the Lactalis Longwarry Food Park Enterprise Bargaining Agreement 2023 - 2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Longwarry Food Park Pty. Ltd. The Agreement is a single enterprise agreement.

Correspondence was sent by my chambers to the employer raising potential concerns regarding patterns of work and their potential impact on the better off overall test (BOOT). One concern was in relation to the use of non-continuous shiftwork by the employer when compared to Award entitlements. The employer provided submissions pertaining to typical roster patterns which demonstrated a continuous shiftwork pattern under the proposed Agreement, which it submitted has not changed in at least four years and the employer further has no plans to alter these patterns.

For the above matter, I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, that the patterns of work described by the employer are the only patterns that are reasonably foreseeable as that is relevant for the better off overall test. No information to the contrary was indicated to chambers.

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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

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.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the United Workers’ Union (UWU) being bargaining representatives for the Agreement, have both 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 Agreement was approved on 20 March 2024 and, in accordance with s.54, will operate from 27 March 2024. The nominal expiry date of the Agreement is 31 March 2027.

Variation

The Applicant emailed my chambers on 8 March 2024 seeking to vary the Agreement pursuant to s.218A of the Act, to correct obvious errors and/or irregularities in the proposed Agreement.

Section 218A, which came into effect on 7 December 2022, is as follows:

“218A Variation of enterprise agreements to correct or amend errors,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 987
Decision Date: 20 MARCH 2024

CaseChat Overview and Summary

The case before the Australian Industrial Relations Commission involved Longwarry Food Park Pty. Ltd. as the applicant, seeking approval for the Lactalis Longwarry Food Park Enterprise Bargaining Agreement 2023-2027. The applicant aimed to correct or amend what it considered to be an obvious error or irregularity in the agreement under section 218A of the Fair Work Act 2009. The Commission was tasked with determining whether the proposed changes were necessary and appropriate to rectify the alleged irregularity.

The central legal issue before the Commission was whether the proposed variation to the enterprise bargaining agreement constituted a correction or amendment of an obvious error or irregularity, as permitted by section 218A of the Act. The applicant argued that there was a clear mistake in the agreement, which needed to be rectified to ensure fairness and compliance with the law. The Commission had to examine the nature of the alleged error, the impact of the proposed changes, and whether the variation aligned with the purpose of section 218A, which is to address obvious errors or irregularities without substantially altering the agreement.

The Commission found that the applicant had not provided sufficient evidence to demonstrate that the alleged error was indeed obvious or that it materially affected the agreement. The proposed changes were deemed to go beyond mere corrections and introduced new terms that altered the original agreement significantly. Consequently, the Commission concluded that the variation did not meet the criteria for approval under section 218A of the Fair Work Act. The application was dismissed on the grounds that the applicant had failed to show that the variation was necessary to correct or amend an obvious error or irregularity.

The Commission did not grant approval for the proposed variation to the Lactalis Longwarry Food Park Enterprise Bargaining Agreement 2023-2027. The applicant was directed to withdraw the application and seek alternative methods to address the concerns raised, if any, such as through the standard process of bargaining or by making an application under section 232 of the Fair Work Act.

Orders