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.

1. 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.

1. 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.

1. 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.  

1. 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.

1. 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.

1. 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.

1. 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

1. 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.

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[1] of the Commission, 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. 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, 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.

1. The first variation seeks to amend incorrectly referenced clause numbers in clause 17, which is titled “Allowances”. In clause 17, there are two subclauses each number clause “17.8” and dealing with different subject matter. The second clause “17.8”, which deals with a leading hand allowance, appears after clause 17.12 and should plainly be numbered “17.13”.

1. The second variation also relations to clause 17. At the end of that clause, there is a table with the heading “Allowances Table”. That clause ought to have, but was not, given its own clause number to distinguish it from the leading hand allowance (originally numbered “17.12” and now to be numbered clause “17.13”). It follows that the “Allowances Table” heading should read “17.14 Allowances Table”.

1. The third variation is amend clause 23.4.1 which currently reads “Employees required to work shifts as defined in clause 4 - Definitions, of this Agreement (other than shifts referred to in clause 24.5 hereof) shall be paid a shift allowance at the rate of $24.73 a shift” and instead be amended to read “Employees required to work shifts as defined in clause 4 - Definitions, of this Agreement (other than shifts referred to in clause 24.5 hereof) shall be paid a shift allowance at the rate prescribed for a ‘shift penalty’ in the ‘Allowance Table’ in clause 17.14”. The change to this clause is needed to correct the obvious error which stipulates a permanent penalty of $24.73 in contradiction of the table at clause 17.14 of the Agreement which provides a higher shift penalty, beginning at $29.54 and which increases each year throughout the life of the Agreement.

1. I am satisfied that the variations sought are obvious errors, defects or irregularities (the errors). While I am satisfied that the errors are obvious on the face of the document, the explanation by the employer in its application confirms such matters.

1. While s.218A does not specify what factors should be considered in the exercise of a discretion to vary an enterprise agreement, 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/defects/irregularities are readily identified, as are the corrections 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 Agreement will be amended as per the order below.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error, defect and irregularity as follows:

1. In clause 17, by amending clause headed “17.8 Leading Hand Allowance” and renaming that clause as “17.13 Leading Hand Allowance”.

2. In clause 17, after the clause headed “17.13 Leading Hand Allowance (as now renamed), by amending the heading “Allowance Table” to read “17.14 Allowance Table”.

3. In clause 23.4.1, by deleting the words “shall be paid a shift allowance at the rate of $24.73 a shift” and inserting the words “shall be paid a shift allowance at the rate prescribed for a ‘Shift Penalty’ in the ‘Allowance Table’ in clause 17.14”.

1. The variation will operate from 20 March 2024.

DEPUTY PRESIDENT

Annexure A

[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

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