North Sydney Leagues Club Ltd T/A NORTHS Collective

[2024] FWCA 1697

[2024] FWCA 1697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

North Sydney Leagues Club Ltd T/A NORTHS Collective

(AG2024/1387)

NORTH SYDNEY LEAGUES CLUB LTD ABN 92 000 147 544 EMPLOYEE ENTERPRISE AGREEMENT 2023-2027.

Hospitality industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 9 MAY 2024

Application for variation of the North Sydney Leagues Club Ltd ABN 92 000 147 544 Employee Enterprise Agreement 2023-2027

1. On 24 April 2024, North Sydney Leagues Club Ltd (the Applicant) lodged an application to vary the North Sydney Leagues Club Ltd ABN 92 000 147 544 Employee Enterprise Agreement 2023-2027 (the Agreement) pursuant to section 218A of the Fair Work Act 2009 (Cth) (the Act) to correct or amend an error, defect or irregularity in the Agreement (the Application).

1. The Agreement was approved by the Commission on 31 July 2023 and commenced operation on 7 August 2023. The Applicant is the sole employer covered by the Agreement.

1. The Application highlighted an error within the Agreement at Schedule A, clause A.5(ii), which omitted the words “37 - Public Holidays”.

1. I am satisfied that s.218A applies to the variations at paragraph 3 of this Decision.

Bargaining Representatives

1. The United Workers’ Union (UWU) are the bargaining representatives for the Agreement.

1. On 29 April 2024, my chambers emailed the UWU and other bargaining representatives a copy of the Application and requested that they advise my chambers whether they have any objection to the amendments sought, by no later than 4.00pm 3 May 2024. The Applicant was also directed to serve the remaining bargaining representatives whose contact details did not appear on the form, with a copy of the Application. Evidence of service on the remaining bargaining representatives was provided to chambers on 3 May 2024.

1. The UWU originally opposed the application, however on 7 May 2024 advised that it no longer did so.

s.218A

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 amendment seeks to address an error where the Applicant omitted to include Public Holidays at Schedule A clause A.5(ii), which would result in public holidays not applying to managers who receive a salary in excess of 50% of the minimum annual rate for their appropriate classification prescribed in Schedule A.3. In support of the Application, a witness statement of Ms Tarryn Sheehy dated 24 April 2024 was submitted, where she outlines the history of the enterprise bargaining of the company. Ms Sheehy further confirms that the Applicant made clear at the enterprise bargaining presentations on 22 May 2023 and 24 May 2023 the intention of the provision and that employees were made aware that for full time salary managers, there would be “no material change due to 50% exemption”. Ms Sheehy explains that the better off overall test was completed on the basis that public holiday rates for managers were excluded and that this exemption has been in place for many years, however the Applicant inadvertently excluded this from the Agreement.

1. I am satisfied that the error in the Agreement outlined at paragraph 3 of this Decision is an obvious error. I am satisfied the amendments should be made, and that it is appropriate to do so. There are no reasons not to exercise my discretion and good reasons to do so. The errors identified at paragraphs 3, 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:

1.   At Schedule A, Clause A.5(ii) include:

“• 37 – Public Holidays” before “will not apply to managers receiving a salary in excess of 50% above the minimum annual rate for the appropriate classification prescribed in Schedule A.3—Employee Definitions.”

1. The variations pursuant to s.218A above will operate from 7 August 2023.

DEPUTY PRESIDENT

[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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