Newnham Earthmoving Pty Ltd T/A Newnham Earthmoving

[2024] FWCA 1010

[2024] FWCA 1010

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Newnham Earthmoving Pty Ltd T/A Newnham Earthmoving

(AG2024/614)

NEWNHAM EARTHMOVING PTY LTD AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER CONNOLLY	MELBOURNE, 21 MARCH 2024

Application for approval of the Newnham Earthmoving Pty Ltd Agreement 2024

Approval

1. An application has been made for approval of an enterprise agreement known as the Newnham Earthmoving Pty Ltd Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Newnham Earthmoving Pty Ltd T/A Newnham Earthmoving (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 13 March 2024.

1. The notification time for the Agreement under s.173(2) was 2 October 2023 and the Agreement was made on 4 March 2024.  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 15 March 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Public holidays: Clause 26 of the agreement allows for the employer and majority of employees to substitute a public holiday by agreement. This is inconsistent with s115(3) of the Act which provides agreement must be between the employer and individual employee.

1. The Applicant has provided a NES precedence clause in the written undertakings attached in Annexure A. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 19 March 2024, 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. 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 21 March 2028.

Variation

1. The Agreement lodged contained an error in Clause 10 which referenced an incorrect clause of the Award. The correct clause of the Award which was intended to be referenced appears to be clause 11 of the Building and Construction General On-site Award 2020. The section of the Clause 10 which contains the error provides the following:

“…

Part-time employment

The provisions of clause 13 of the Award will apply to part time employment.”

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 an error in Clause 10 of the Agreement which contains a reference to an incorrect clause is an obvious error. 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 error in the above clause will be amended to reflect the correct clause reference provided 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 the reference to “clause 13” in Clause 10 of the Agreement and replacing it with “clause 11”.

2. This variation will operate from 21 March 2024.

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

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