Oldfields Pty Ltd
[2024] FWCA 643
•19 FEBRUARY 2024
| [2024] FWCA 643 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Oldfields Pty Ltd
(AG2024/188)
OLDFIELDS PTY LTD, MOOREBANK AGREEMENT 2023 - 2026
| Manufacturing and associated industries | |
| COMMISSIONER LEE | MELBOURNE, 19 FEBRUARY 2024 |
Application for approval of the Oldfields Pty Ltd, Moorebank Agreement 2023 - 2026
An application has been made for approval of an enterprise agreement known as the Oldfields Pty Ltd, Moorebank Agreement 2023 - 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Oldfields Pty Ltd. The Agreement is a single enterprise agreement.
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.
The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) 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.
I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):
· Clause 20.1 – Rostered Days Off/Flexi Days (RDO’s)
· Clause 29.2.1 – Conversion of Casual Employment
However, noting clause 6.5 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.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 February 2024. The nominal expiry date of the Agreement is 31 March 2026.
Variation
On 7 February 2024 my Chambers sent correspondence to parties raising the following concerns:
Clause 12.2 of the Consultation term refers to clauses 14.1(a), 14.1 and 14.8 which do not occur elsewhere in the agreement.
Clause 17.2.1 and 17.2.2 of the Consultation term refer to clauses 17.6.1 and 17.6.1.2 which do not occur elsewhere in the agreement.
On 9 February 2024 the AMWU responded with the following:
“The AMWU and the Employer wish to provide the following response to the queries raised…
This is an error, we kindly request that the Commissioner use the powers as per s218A.”
On 14 February 2024 my Chambers sent correspondence to parties indicating that I may vary the enterprise agreement to correct or amend an obvious error, defect or irregularity, however, it was not clear what the correct clause references should be. I sought further submissions as to what the references to clauses 14.1(a), 14.1 14.8, 17.6.1 and 17.6.1.2 should be.
On 15 February 2024 the AMWU responded with the following:
“Issue 1: Clause 12.2 of the Consultation term refers to clauses 14.1(a), 14.1 and 14.8 which do not occur elsewhere in the agreement.
The suggested correction is as follows:
12.2 For a major change referred to in cl. 17.1.1:
a) the Employer must notify the relevant employees of the decision to introduce the major change; and
b) subclauses 17.1.2 to 17.2.3 apply.Issue 2: Clause 17.2.1 and 17.2.3 of the Consultation term refer to clauses 17.6.1 and 17.6.1.2 which do not occur elsewhere in the agreement.
Delete “the introduction of the changes referred to in 17.6.1.2 hereof”
The suggested correction is as follows:
17.2.1 The company shall discuss with the employees affected and if requested, with their Union or Unions, inter alia, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees and/or their Unions in relation to the changes.
Delete “referred to in 17.6.1 hereof.”
The suggested correction is as follows:
17.2.2 The discussions shall commence as early as practicable after a definite decision has been made by the company to make the changes.”
Section 218A of the Act came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is as follows:
“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;
(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.”
Considering s.218A(2)(b)(i) of the Act, the Fair Work Commission may vary an enterprise agreement on application by one or more of the employers covered by the agreement.
I am satisfied that the agreement should be varied to correct the errors by:
Removing clause 12.2 as follows:
“12.2 For a major change referred to in cl. 14.1(a):
a) the Employer must notify the relevant employees of the decision to introduce the major change; and
b) subclauses 14.3 to 14.8 apply.”
Replacing clause 12.2 as follows:
“12.2 For a major change referred to in cl. 17.1.1:
a) the Employer must notify the relevant employees of the decision to introduce the major change; and
b) subclauses 17.1.2 to 17.2.3 apply.
Removing clause 17.2.1 and 17.2.2 as follows:
“17.2.1The company shall discuss with the employees affected and if requested, with their Union or Unions, inter alia, the introduction of the changes referred to in 17.6.1.2 hereof, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees and/or their Unions in relation to the changes.
17.2.2The discussions shall commence as early as practicable after a definite decision has been made by the company to make the changes referred to in 17.6.1 hereof.”
Replacing clause 17.2.1 and 17.2.2 as follows:
“17.2.1 The company shall discuss with the employees affected and if requested, with their Union or Unions, inter alia, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees and/or their Unions in relation to the changes.
17.2.2The discussions shall commence as early as practicable after a definite decision has been made by the company to make the changes.”
There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement and correct the error.
Order
I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error by varying clauses 12.2, 17.2.1 and 17.2.2.
The variation will operate from 19 February 2024.
COMMISSIONER
[1]PR771601.
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