Qube Logistics (Vic) Pty Ltd

[2023] FWCA 3023

[2023] FWCA 3023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Qube Logistics (Vic) Pty Ltd

(AG2023/3213)

QUBE LOGISTICS VICTORIA WORKPLACE AGREEMENT 2023

[AE521255]

Road transport industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 20 SEPTEMBER 2023

Application for variation of the Qube Logistics Victoria Workplace Agreement 2023 - Agreement varied

1. Qube Logistics (Vic) Pty Ltd (Employer) has applied under s 218A of the Fair Work Act 2009 (Act) to correct or amend obvious errors, defects or irregularities in the Qube Logistics Victoria Workplace Agreement 2023 (Agreement). The Agreement is a single enterprise agreement. With the consent of the Transport Workers’ Union (TWU), the Employer identifies and seeks to correct the following minor typographical errors:

(1)   In the index at 6 delete “I”;

(2)   In the definition of “Qube” at clause 5 delete “I” and replace it with “ACN”;

(3)   After clause 5 and before clause 6, delete the extra character, “’”; and

(4)   At clause in 23.1 insert a space between the words “Qube” and “about”.

And to correct the following substantive errors:

(5)   At clause 19.2(b)(i) amend the rate of annual leave loading for Depot Stream Employees to 17.5%;

(6)    At clause 27.1 and 27.2, Part B wage rates amend Depot Stream Employee rates to provide a further 1% increase to wage rates;

(7)   At clause 29 the rates for Linehaul Stream Employees refers to the Award + 5%, the reference to the “increase of 4%” in the top row of the table be deleted.

1. Section 218A of the Act provides:

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; or

(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.

1. Section 218A of the Act is akin to the slip rule found in s 602 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. Section 218A was inserted by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Amendment Act), which received royal assent on 6 December 2022 and commenced in part the following day. Part 17 of Schedule 1 of the Amendment Act commenced on 7 December 2022. In the result s 218A of the Act commenced on that day. Its evident purpose 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.

1. The minor typographical errors are plainly errors of the kind contemplated by s 218A and should be corrected. The same typographical error identified at [1](1) above appears in the heading to clause 6 and will also be corrected.

1. As to the error at (5) the Employer submit that an increase to the annual leave loading for Depot Stream Employees is erroneously included but was not the subject of agreement during bargaining. This is also confirmed in the explanatory document which states that “the only material change is that employees who have worked at a higher grade for 80% of the time over the last six months are entitled to apply for annual leave to be paid at the higher grade.” This is also accepted by the TWU which was a bargaining representative for the Agreement.  Clause 19.2(b)(i) will be amended to reflect an entitlement toa 17.5% annual leave loading.

1. As to the error at (6), I accept the higher rates were agreed during bargaining and the Agreement should be varied to reflect the 4% increase that was agreed.

1. The Employer submits the error at (7) is an irregularity and I accept that the removal of the words, numeral and symbol “increase of 4%” corrects this irregularity making clause 29 clearer.

1. The errors outlined at [1] should be corrected by varying the Agreement. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement. I propose to amend the errors identified above and order as such below.

Order

1. I order, pursuant to s 218A of the Act, that the Agreement be amended to correct obvious errors as follows:

1. In 6 of the index, delete the letter “I”;

2. In clause 5, delete the letter “I” from the definition of “Qube” and replace it with the acronym “ACN”;

3. In the heading to clause 6, delete the letter “I”;

4. Between the last definition in clause 5 and clause 6, delete the comma;

5. In clause in 23.1 add a space between the words “Qube” and “about”;

6. In clause 19.2(b)(i), delete “25%” and replace it with “17.5%”;

7. In clauses 27.1 and 27.2 amend Depot Stream Employee rates by increasing the specified rates by 1%; and

8. In clause 29, delete “increase of 4%” in the first row of the table.

9. A marked-up copy of the Agreement as varied is attached as Annexure A.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE521255  PR766356>
Annexure A