RACQ Operations Pty Ltd T/A RACQ

[2024] FWCA 3878

[2024] FWCA 3878

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

RACQ Operations Pty Ltd T/A RACQ

(AG2024/3649)

RACQ ASSISTANCE CONTACT CENTRE AND DISPATCH OPERATIONS ENTERPRISE AGREEMENT 2024 -2027

Banking finance and insurance industry
COMMISSIONER HUNT	BRISBANE, 6 NOVEMBER 2024

Application for approval of the RACQ Assistance Contact Centre and Dispatch Operations Enterprise Agreement 2024 –2027

1. RACQ Operations Pty Ltd T/A RACQ (the Employer) has applied for approval of an enterprise agreement known as the RACQ Assistance Contact Centre and Dispatch Operations Enterprise Agreement 2024 – 2027. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 21 June 2024 and the Agreement was made on 4 September 2024. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Australian Municipal, Administrative, Clerical and Services Union (ASU) and employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received.

1. 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. Following receipt of the undertakings, the Employer advised of a typographical error made in Clause 10.5 the Agreement. The Employer stated that this clause referred to the overtime meal allowance being paid hourly, when in fact it is a one-off payment. The Employer noted that the Clerks - Private Sector Award 2020 (the Award) in Clause 19.5 provides that this allowance is a one-off payment, and not hourly. The Employer also submitted that all previous iterations of the Agreement referred to the allowance as being a one-off payment.

1. The Employer submitted that this is an obvious error and that the Commission should exercise its discretion to correct at the point of the Agreement’s approval.

1. I requested that the Employer provide a corrected version of the Agreement reflecting what it submitted Clause 10.5 should have read. The corrected version of the Agreement removed all references to the overtime meal allowance being paid “per hour” but was in all other respects identical to the version of the Agreement submitted with the application.

1. After receiving the corrected version of the Agreement, I allowed the bargaining representatives a period of time to provide any views in relation to the Employer’s proposal for the Agreement to be corrected. The ASU expressed views in support of the Employer’s position that the Agreement should be corrected. No other bargaining representatives provided any views in respect of this issue.

1. Section 218A of the Act provides 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.”

1. I am satisfied that the reference to the overtime meal allowance being paid “per hour” was an obvious typographical error within the meaning of s.218A(1) of the Act, having regard to the Employer’s submissions, the views of the ASU, and the equivalent provision in Clause 19.5 of the Award. It would be inconsistent with the purpose and ordinary understanding of a meal allowance to be paid on an hourly basis.

1. Accordingly, I exercise my discretion to vary the Agreement under s.218A of the Act to correct the obvious typographical error in Clause 10.5 of the Agreement. The Agreement is varied such that the references to “per hour” in Clause 10.5 are removed.

1. I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The ASU, being a bargaining representative for the Agreement, has given notice under s.183 it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the ASU.

1. 
   The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 November 2024. The nominal expiry date of the Agreement is 30 September 2027

COMMISSIONER

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Annexure A – Undertakings