Montague Farms People Pty Ltd Trading AS Montague Farms

[2025] FWCA 1085

[2025] FWCA 1085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Montague Farms People Pty Ltd Trading AS Montague Farms

(AG2025/576)

MONTAGUE FARMS PEOPLE PTY LTD & UNITED WORKERS UNION ENTERPRISE AGREEMENT 2024

Agricultural industry
COMMISSIONER CONNOLLY	MELBOURNE, 28 MARCH 2025

Application for approval of the Montague Farms People Pty Ltd & United Workers Union Enterprise Agreement 2024.

Approval

1. An application has been made for approval of an enterprise agreement known as the Montague Farms People Pty Ltd & United Workers Union Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Montague Farms People Pty Ltd Trading AS Montague Farms (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 13 March 2025.

1. The notification time for the Agreement under s.173(2) was 23 August 2024 and the Agreement was made on 26 February 2025.  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 20 March 2025, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

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

·   Compassionate leave: Clause 34 of the Agreement provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies, however, is silent in relation to compassionate leave for stillbirths and miscarriages as is provided by s.104(1)(b) and (c) of the Act.

·   Personal/carer’s leave: Clause 33 provides that an employee must give the employer notice of taking personal/carer’s leave as soon as practicable (before the commencement of the shift). In the event an employee is incapacitated or otherwise unable to contact the Employer before the commencement of the shift, the Employer will meet and discuss with the employee regarding his/her situation and will not unreasonably refuse paying paid leave in such circumstances. This may be inconsistent with s. 107 of the Act which provides for notice to be given as soon as reasonably practicable (which may be a time after the leave has started).

1. Clause 7 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 NES provided that where there is an inconsistency between the Agreement and the NES the more beneficial provision to an employee shall take precedence.” 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 24 March 2025, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

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. The “United Workers’ Union”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

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 28 March 2028

Variation

1. The Agreement lodged contained drafting errors in Clauses 12(a)(ii), 18(a)(ii) and 33.

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 errors in Clauses 12(a)(ii), 18(a)(ii) and 33 of the Agreement are obvious errors. 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 errors in the above clauses will be amended to reflect the correct wording confirmed 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 “elimination of diminution of job opportunities” in Clause 12(a)(ii) of the Agreement and replacing it with “elimination or diminution of job opportunities”.

2. By deleting “shall be entitled to and additional weeks’ notice” in Clause 18(a)(ii) of the Agreement and replacing it with “shall be entitled to an additional weeks’ notice”.

1. This variation comes into effect on 28 March 2025.

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

t Printed by authority of the Commonwealth Government Printer

<AE528507  PR785655>

hen was).