Pyramid Constructions (WA) Pty Ltd T/A Pyramid Constructions

[2023] FWCA 2253

[2023] FWCA 2253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Pyramid Constructions (WA) Pty Ltd T/A Pyramid Constructions

(AG2023/1952)

PYRAMID GROUP EMPLOYEE ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 20 JULY 2023

Application for approval of the Pyramid Group Employee Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Pyramid Group Employee Enterprise Agreement 2023 (Agreement). The application was made by Pyramid Constructions (WA) Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement covering two employers that are related bodies corporate being Pyramid Constructions (WA) Pty Ltd and R.E. Asset Logistics Pty Ltd.

1. Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The Form F17A filed with the application indicates that the notification time for the Agreement was 1 May 2023. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in force immediately prior to the commencement of the amendments.

1. Further, the Agreement was made on 2 June 2023. As this is a date prior to 6 June 2023, the effect of clause 67 of Part 13 of Schedule 1 of the Act is that the amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test do not apply to the agreement.

1. The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The Agreement includes a typographical error in Schedule 1 at page 18 of the Agreement in that the salary for Project Manager is stated as ‘$85,0000’ rather than ‘$85,000’. The Applicant applied for a variation to correct this error pursuant to s.218A of the Act. I am satisfied that this is an obvious error and vary the Agreement such that the reference to ‘$85,0000’ reads as ‘$85,000’. The variation will take effect from the date of the Agreement’s operation.

1. The Applicant also applied for a variation pursuant to s.218A of the Act to include in ‘Schedule 1 – Classifications and Rates of Pay Covered by this Agreement’ the position of Contract Administrator with a salary of $60,000. In particular, the Applicant seeks the inclusion of the following:

Position	Coverage	Salary/wage for a full time equivalent
Contract Administrator	NES	$60,000

1. The Applicant submitted that:

   ·On 18 and 19 May 2023, a draft of the Agreement was emailed to employees which included the details in relation to the Contract Administrator position as set out above. A copy of the email and accompanying draft Agreement was provided to the Commission.

   ·Employees were provided with the Notice of Employee Representational Rights (NERR), including the four employees employed as Contract Administrators. Each of these four employees appointed themselves as bargaining representatives in relation to the Agreement.

   ·The Contract Administrators were involved in the entire bargaining process.

   ·It is clear that all parties intended that the position of Contract Administrator would be covered by the Agreement.

   ·The omission of the Contract Administrator position from Schedule 1 in the final version of the Agreement was a clear drafting error.

   ·This is the type of error contemplated by s.218A.

   ·The Contract Administrators would be disadvantaged by being excluded from coverage under the Agreement.

1. The Commission sought the views of the four Contract Administrators impacted as well as the other bargaining representatives for the Agreement. The four Contract Administrator employees confirmed with the Commission their understanding that the position of Contract Administrator has been inadvertently omitted from the final version of the Agreement and submitted that this was an obvious error of the nature contemplated by s.218A of the Act as submitted by the Applicant. No other bargaining representative raised any concerns in relation to the application for variation.

1. Given that the Contract Administrators were involved in the bargaining process, that their position was included in the Agreement in earlier drafts and that the Applicant and Contract Administrator employees agree that the omission of the Contract Administrator was an error, I accept the Applicant’s position that the Contract Administrators were intended to be covered by the Agreement and that the omission of Contract Administrator pay details in the final version of the Agreement was a drafting error. I am satisfied that this is an obvious error of the nature contemplated by s.218A of the Act and vary the Agreement to include the details in relation to the Contract Administrator that the Applicant seeks to have included. The variation will take effect from the date of the Agreement’s operation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 July 2023. The nominal expiry date of the Agreement is 20 July 2027.

COMMISSIONER

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Annexure A