Optus Retailco Pty Ltd
[2024] FWCA 3059
•27 AUGUST 2024
| [2024] FWCA 3059 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Optus Retailco Pty Ltd
(AG2024/3114)
OPTUS RETAIL AGREEMENT 2023
| Telecommunications services | |
| DEPUTY PRESIDENT DEAN | CANBERRA, 27 AUGUST 2024 |
Application for variation of the Optus Retail Agreement 2023.
Optus Retailco Pty Ltd (Applicant) has made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the Optus Retail Agreement 2023 (the Agreement) to correct or amend an error, defect or irregularity in the Agreement.
The Agreement was approved by the Commission on 25 May 2023 and commenced operation on 4 July 2023. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Shop, Distributive and Allied Employees Association (SDA) are covered by the Agreement.
The Applicant submits that errors were identified at clauses 4.2 and 5.2 of Schedule 2 in the Agreement, the details of which are set out in the application and extracted as follows:
“Error 1
The first error is in relation to clauses 4.2(a) and 5.2(a) of Schedule 2 in the Agreement. These clauses deal with store manager excess hours loading. Clauses 4.2(a) and 5.2(a) of the Agreement are in substantially similar terms, but for clause 4.2(a) being in respect of full-time Store Managers and clause 5.2(a) being in respect of part-time Store Managers.
As agreed between the parties when drafting the Agreement, the ‘SM Excess Hours Loading’ provided for in clauses 4.2(a) and 5.2(a) is intended to ensure that Store Managers working additional hours are not paid less than the rate under the General Retail Industry Award 2020 (Award) for certain excess hours that are worked. It is a loading which is calculated by taking the difference between the Store Manager 1 hourly rate under the Agreement and the Retail Employee Level 6 Sunday store manager hourly rate under the Award (i.e. the Retail Employee Level 6 Hourly Sunday rate of pay minus the Store Manager 1 hourly rate). At the time of making the Agreement, the loading was $1.75 per hour.
Clauses 4.2(a) and 5.2(a) (as currently drafted) state:
This rate will be increased each year on 1 July. The rate will be the difference between the Store Manager 1 Hourly Rate of Pay and the Retail Employee Hourly rate of pay under the Modern Award.
Clauses 4.2(a) and 5.2(a) should have referred to the Award level 6 hourly rate for Sunday, however these words have inadvertently been omitted. These missing words mean the clauses are inoperative in their present form, as they do not specify what ‘Retail Employee Hourly Rate’ each clause is referring to and the comparative hourly rate that is to be used when calculating the loading.
In the process of doing the calculations, the Applicant has also identified that the clauses do not cater for the possibility that the differential might reduce. This is, in fact, the case in this financial year. This was not the parties’ intention when drafting the Agreement and the proposed variation seeks to also address this error by expressly stating that the rate will be “maintained” (if not increased).
Error 2
The second error is in relation to clauses 4.2(b) and 5.2(b) of Schedule 2. These clauses deal with the Store Manager overtime payment. Clauses 4.2(b) and 5.2(b) are in substantially similar terms, but for clause 4.2(b) being in respect of full-time Store Managers and clause 5.2(b) being in respect of part-time Store Managers.
Clauses 4.2(b) and 5.2(b) (as currently drafted) state:
These rates will be increased each year on 1 July to the hourly overtime rate payable under the Modern Award for a Retail Employee Level 6.
Clauses 4.2(b) and 5.2(b) are drafted in relation to the overtime rate payable for certain overtime hours worked on Monday - Sunday hours or a public holiday.
In the process of updating the rates for 1 July 2024, the Applicant has identified that the clauses do not refer to which Retail Employee Level 6 the “SM Overtime Payment” is to increase to. The clauses should have stated that it is the Retail Employee Level 6 overtime rate on a Sunday or a public holiday (as the case may be).
Error 3
The third error is in relation to clause 5.2(c) of Schedule 2.
There was an inadvertent formatting error in the drafting of clause 5.2(c), where the sentence “For the avoidance of doubt, this payment applies instead of your Base Hourly Rate” (which appears after the table in clause 5.2(b)) was referred to as sub-clause (c). Instead, this sentence should be part of the preceding subclause (b) which deals with the Store Manager Overtime Payment.
As it is currently formatted, it is unclear which payment is to apply instead of the Store Manager’s Base Hourly Rate. Similarly to clause 4.2(b) of the Agreement, the applicable payment should be the Store Manager Overtime Payment however for part-time Store Managers.
Accordingly, the current clause 5.2(d) should be identified as clause 5.2(c), and current sub-clause (c) should form part of sub-clause (b).
The proposed variation to the Agreement sought by the Applicant is attached to this decision as Annexure A.
The Applicant states that the proposed variation reflects the intention of the parties at the time of drafting the Agreement and that the unions covered by the Agreement have indicated their support for the application.
On 16 August 2024, correspondence was sent to the CEPU and SDA seeking their views on the proposed amendments. Both unions confirmed on 21 August 2024 that they do not object to the application.
I am satisfied that the errors in the Agreement sought to be amended are obvious errors. I am satisfied the amendments should be made, and that it is appropriate to do so by varying the Agreement pursuant to s.218A of the Act.
The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision. The variation operates from the date the Agreement commenced, being 4 July 2023.
DEPUTY PRESIDENT
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