Murray Irrigation Limited

[2023] FWCA 2855

[2023] FWCA 2855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Murray Irrigation Limited

(AG2023/2865)

MURRAY IRRIGATION LIMITED ENTERPRISE AGREEMENT 2023

Water, sewerage and drainage services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 12 SEPTEMBER 2023

Application for approval of the Murray Irrigation Limited Enterprise Agreement 2023

Approval

1. An application has been made for approval of an enterprise agreement known as the Murray Irrigation Limited Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Murray Irrigation Limited. The Agreement is a single enterprise agreement.

1. 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.

1. 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.

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. 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. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Australian Workers' Union (AWU) 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) I note that the Agreement covers the organisation. The AWU support approval of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 17(b) – Annual Leave;

·           Clause 26.2(a) – Public Holidays;

·           Clause 34 – Abandonment of Employment;

·           Clause 32.2(b) – Notice of termination by employee.

However, noting clause 5(b) 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 September 2023. The nominal expiry date of the Agreement is 12 September 2026.

Variation

1. A Form F1 was simultaneously lodged with the Agreement, which sought to vary provisions of the Agreement pursuant to section 218A of the Act (the Form).

1. The Form highlighted errors within the Agreement that had been identified by the Applicant as follows:

a)A watermark of the word 'DRAFT' appears on every page.

b)The word 'DRAFT' appears in the header on page i and page 1.

c)In clause 9.1(b)(i), a '%' sign is missing. The words 'by 2.5from' should read 'by 2.5% from'.

d)In clause 9.1(b)(iii), the word 'March' appears in error. The words '1 July March 2025' should read '1 July 2025'.

e)In clause 11.1(b), a cross referencing error is identified by the words "Error! Reference source not found". The correct cross reference is subclause 15.3. Clause 11.1(b) of the current Murray Irrigation Limited Enterprise Agreement 2019 (2019 Agreement) originally cross referenced clause 15.2(d). Under the 2023 Agreement, a new clause 15.3 has replaced clause 15.2(d) with minor amendments to the language.

1. The AWU does not oppose any of the variations sought in the Form.

1. I am satisfied that s.218A applies to the variations at paragraph 11 of this Decision.

1. 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.”

1. 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.

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 Applicant submits that the amendments seek to address typographical, drafting and cross-referencing errors. In support of its application, the Applicant further submits that the Summary of Changes document provided to employees correctly sets out the proposed variations outlined in paragraphs 11(c) and 11(d) of this Decision. 

1. I am satisfied that the typographical, drafting and cross-referencing errors in the Agreement outlined at paragraph 11 of this Decision 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. The AWU do not oppose any of the variations sought by the Applicant. There are no reasons not to exercise my discretion and good reasons to do so. The errors identified at paragraph 11, will be amended as per the order.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied as follows:

a)   Remove the watermark of the word 'DRAFT' on every page;

b)   Remove the word 'DRAFT' in the header on page i and page 1;

c)   In clause 9.1(b)(i), 'by 2.5from' will be amended to read 'by 2.5% from';

d)   In clause 9.1(b)(iii), the word 'March' be removed;

e)   In clause 11.1(b), the words "Error! Reference source not found” be amended to read “15.3”.

1. The variations pursuant to s.218A above will operate from 19 September 2023.

1. The Applicant has simultaneously submitted pages of the Agreement with the variations listed at paragraph 11. The Agreement, as varied, will be published with this Decision.

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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