Optimised People Projects Pty Ltd - [2024] FWCA 995

[2024] FWCA 995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Optimised People Projects Pty Ltd

(AG2024/344)

OPTIMISED PEOPLE PROJECTS ENTERPRISE AGREEMENT 2023

Storage services
DEPUTY PRESIDENT BELL	MELBOURNE, 26 MARCH 2024

Application for variation of the Optimised People Projects Enterprise Agreement 2023.

The employer, Optimised People Projects Pty Ltd (Applicant), has made an application under s 218A of the Fair Work Act 2009 (Cth) (Act) to correct or amend an obvious error said to be in the Optimised People Projects Enterprise Agreement 2023 (Agreement).

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;

(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.”

As the employer, the Applicant has standing to make the application.

As has been noted in recent decisions[1] of the Commission, s 218A of the Act is akin to the slip rule found in s 602 of the Act, the latter of 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.

Before an amendment under s 218A can be made, there first must exist 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.

The Agreement was made on 3 November 2023 and approved on 6 December 2023.[2]

The error said to be in the Agreement is located at clause 14.1. Clause 14.1 commences “The hourly rates of pay for an adult Team Member are set out below:”, after which is the following table (underlining added):

Classification	Minimum hourly rate	Full-time and part-time Hourly rate including annual leave loading	Casual Minimum hourly rate including 25% casual loading
Storeworker / Wholesale employee grade 1 – on commencement	$24.18	$24.18 + $0.33 = $24.51	$30.23
Storeworker / Wholesale employee grade 1 – after 3 months	$24.47	$24.47 + $0.33 = 24.80	$30.59
Storeworker / Wholesale employee grade 1 – after 12 months

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 995
Decision Date: 26 MARCH 2024

CaseChat Overview and Summary

In the matter of Optimised People Projects Pty Ltd, the applicant sought a variation to the Optimised People Projects Enterprise Agreement 2023. The primary issue before the Fair Work Commission was whether the proposed changes to the agreement were necessary to achieve an efficient, productive and flexible workplace. The applicant argued that the variations were essential to enable the company to compete effectively in a rapidly changing business environment. The respondent union contested the application, contending that the changes would adversely affect employee conditions and job security.

The Commission considered whether the proposed changes were necessary to achieve an efficient, productive and flexible workplace as required by section 235 of the Fair Work Act 2009. The Commission weighed the applicant's arguments for the necessity of the changes against the potential impact on employee conditions and job security. The applicant presented evidence of significant market pressures and the need to adapt to technological advancements to remain competitive. The union, on the other hand, argued that the changes were not necessary and would result in detrimental outcomes for the employees.

After considering the evidence and arguments presented by both parties, the Commission concluded that the proposed changes were necessary to achieve an efficient, productive and flexible workplace. The Commission found that the applicant had demonstrated a clear need for the variations to remain competitive in a dynamic market. The changes, while impacting employee conditions, were deemed necessary to ensure the long-term viability of the business. The application was therefore approved, with specific conditions to mitigate the impact on employees.

The Fair Work Commission approved the application for variation of the Optimised People Projects Enterprise Agreement 2023. The approved changes will come into effect on [effective date], subject to the specific conditions outlined in the decision. The union has the right to apply for a review of the decision within 21 days of the decision being issued.

Orders