Northern SEQ Distributor - Retailer Authority T/A Unitywater

[2019] FWCA 8685

[2019] FWCA 8685

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Northern SEQ Distributor - Retailer Authority T/A Unitywater
(AG2019/4147)

UNITYWATER WATER INDUSTRY INDOOR/SALARIED STAFF EMPLOYEES ENTERPRISE AGREEMENT NO. 2

Water, sewerage and drainage services
COMMISSIONER SIMPSON	BRISBANE, 23 DECEMBER 2019

Application for approval of the Unitywater Water Industry Indoor/Salaried Staff Employees Enterprise Agreement No. 2.

[1] An application has been made for approval of an enterprise agreement known as the Unitywater Water Industry Indoor/Salaried Staff Employees Enterprise Agreement No. 2(the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Northern SEQ Distributor - Retailer Authority T/A Unitywater.

[2] The Agreement is a single enterprise agreement.

[3] Mr Stephen Baker, Branch Secretary (Queensland) of the Australian Worker’s Union (AWU), lodged a Form F18 statutory declaration supporting approval of the Agreement and giving notice under s.183 of the Act that the AWU wants the Agreement to cover it.

[4] Mr Neil Henderson, Branch Secretary of the Queensland branch of the Australian Municipal, Administrative, Clerical and Services (ASU), lodged a Form F18 statutory declaration supporting approval of the Agreement and giving notice under s.183 of the Act that the CPSU wants the Agreement to cover it.

[5] Mr Adam Kerskale, State Director of the Queensland branch of the The Association of Professional Engineers, Scientists and Managers, Australia (APESMA), lodged a Form F18 statutory declaration giving notice under s.183 of the Act that the CPSU wants the Agreement to cover it.

[6] A Form F1 application under s 602 of the Act was lodged with the application for approval of an enterprise agreement on 30 October 2019. The s.602 application seeks the following:

“The Fair Work Commission correct or amend the following obvious errors in the Unitywater Water Industry Indoor/Salaried Staff Employees Enterprise Agreement No. 2 (Agreement):

1. The word "unpaid" in clause 6.7.2(a) on page 45 be amended to "paid"; and

2. The references to "1 November" on page 59 be amended to "30 November".”

[7] The Form F1 provided the following grounds for relief at Question 2.2:

1. Family and domestic violence leave in the Agreement was intended to be paid leave, not unpaid leave. This is evidenced in clause 6.7.1 which refers to paid leave. The first amendment to the Agreement is to correct this obvious error in clause 6.7.2(a).

2. Pay rates were also intended to apply from the first full pay period after 30 November 2020, 2021 and 2022. This is evidenced in clause 4.4.2 and the other tables on pages 56 — 58 of the Agreement. The second amendment to the Agreement is to correct the obvious error in the tables on page 59.

3. The intention for the Agreement to contain paid family and domestic violence leave and for wage increases to occur after the first full pay period after 30 November was outlined in the explanatory document that was given to all employees, and evidenced in other parts of the Agreement (as outlined above).

4. Unitywater discovered these errors during the access period but before the voting commenced.

5. On 16 October 2019, employees and the unions were notified of these errors and Unitywater's intention to make this application before the vote to approve the Agreement commenced.

6. Following the principles in RotoMetrics Australia Pty Ltd T/A RotoMetrics v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and others[2011] FWAFB 7214 (RotoMetrics), Unitywater submits that:

a. there has been an unintentional error in the Agreement for the reasons set out in paragraphs 1 — 3 above;

b. the Agreement containing the errors does not conform with the intention of the parties and the correction would have been made if the error had been mentioned before the access period commenced;

c. there is no material differences in opinion between the parties; and

d. the error is manifestly clear and an officious bystander would reply when asked if the amendment was appropriate, "of course".”

[8] No bargaining representative raised the errors in their Form F18 application and no bargaining representative has raised an objection to the application for the amendment since filing of the application.
[9] I am satisfied that per the principles in RotoMetrics, there was an unintentional error in the Agreement which does not conform with the intention of the parties; the correction would have been made if the error had been mentioned before the access period commenced; there is no material differences in opinion between the parties; and the error is manifestly clear and an officious bystander would reply when asked if the amendment was appropriate, "of course". On that basis I grant the application under s.602 of the Act.

[10] The Applicant has provided written undertakings. A copy of the undertakings is attached in Appendix 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.

[11] Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[12] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[13] In accordance with s.201(2) of the Act, I note that the Agreement covers the AWU, ASU, and APESMA.

[14] The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE506609  PR715565>

Appendix A.