Peanut Company of Australia Pty Ltd
[2023] FWCA 77
•11 JANUARY 2023
| [2023] FWCA 77 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Peanut Company of Australia Pty Ltd
(AG2022/5417)
BEGA KINGAROY & TOLGA RELIABILITY ENTERPRISE AGREEMENT 2022
| Food, beverages and tobacco manufacturing industry | |
| COMMISSIONER YILMAZ | MELBOURNE, 11 JANUARY 2023 |
Application for approval of the Bega Kingaroy & Tolga Reliability Enterprise Agreement 2022
An application has been made for approval of an enterprise agreement known as the Bega Kingaroy & Tolga Reliability Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Peanut Company of Australia Pty Ltd. The Agreement is a single enterprise agreement.
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure 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. The undertakings are taken to be a term of the Agreement.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
I observe that clause 26.9 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1 of the undertaking below, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Electrical Trades Union (ETU) and the Australian Manufacturing Workers' Union (AMWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.
On 10 January 2023, an apparent typographical error at clause 26.10 of the Agreement was brought to the Commission’s attention by the Applicant. The Applicant provided the undertaking, listed below, to address this issue.
On the same day, my Chambers sent out an email stating that an undertaking was not an appropriate way to address a typographical error. The email also identified that I would seek to rely upon the power to amend Agreements under s.218A. The bargaining representatives were given two days to raise any objections or concerns regarding the request to make the correction. I note correspondence from received from both the ETU and AMWU confirming no objections to correcting the apparent typographical error in the manner proposed.
Having considered the correspondence from the Applicant, ETU and AMWU I am satisfied that the correction is to an obvious error in the drafting of the agreement. Pursuant to s.218A of the Act, the Commission may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity. I am satisfied that making this amendment will not disadvantage any of the employees. I am satisfied that a correction can be made to the Agreement pursuant to s.218A. I confirm that the error in the original Agreement has been removed and clause 26.10 should read as follows: ‘Clause 26 will not apply to Team Members with less than one year's continuous service and the general obligation on the Company will be no more than to give relevant Team Members an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the Team Members of suitable alternative employment.’
The Agreement is approved and in accordance with s.54, will operate from 18 January 2023. The nominal expiry date of the Agreement is 1 February 2025.
COMMISSIONER
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Annexure A
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