Renron Victoria Pty Ltd, "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2024] FWCA 1346
•16 APRIL 2024
| [2024] FWCA 1346 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement
Renron Victoria Pty Ltd, "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(AG2024/796)
AMWU AND RENRON VICTORIA PTY LTD METAL ENGINEERING NORTH EAST LINK PROJECT AGREEMENT 2023 – 2026
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 16 APRIL 2024 |
Application for approval of the AMWU and Renron Victoria Pty Ltd Metal Engineering North East Link Project Agreement 2023 - 2026
An application has been made by Renron Victoria Pty Ltd (Employer) for approval of an enterprise agreement known as the AMWU AND RENRON VICTORIA PTY LTD Metal Engineering North East Link Project Agreement 2023 – 2026 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act).
This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s 187(5)(a) of the Act, I am satisfied that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement as required by s 187(5)(b).
The Employer has provided a written undertaking. A copy of the undertaking is attached at Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.
Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with the AMWU and that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s 54 of the Act will operate from 23 April 2024. The nominal expiry date of the Agreement is 1 July 2026.
Variation
By way of correspondence dated 16 April 2024, the Employer and the AMWU jointly sought that the Commission correct an error, defect or irregularity in the Agreement pursuant to s 218A(2)(a) of the Act.
The Agreement as lodged contained a stamp on the cover page which states “Note – the flexibility term is taken to be a term of this agreement and can be found at the end of the agreement.” The Agreement attached a copy of the model flexibility term in the form provided by Schedule 2.2, regulation 2.08 of the Fair Work Regulations 2009. The parties submit that the stamp and the model flexibility term were included in the Agreement in error and seek that they be omitted.
Section 218A of the Act was inserted by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 to provide a process for varying an enterprise agreement to “correct or amend an obvious error, defect or irregularity,” whether in substance or form. It provides as follows:
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.
Before an enterprise agreement may be varied under s 218A of the Act, there must be satisfaction of the existence of an obvious error, defect or irregularity (whether in substance or
form).
I am satisfied that the inclusion of the stamp and the model flexibility term in the Agreement was an obvious error. The Agreement contains a compliant flexibility term at clause 46 and the model flexibility term is not required. Further, the model flexibility term is inconsistent with clause 46 of the Agreement such that its inclusion in the Agreement is apt to confuse. In these circumstances, the stamp on the covering page is erroneous. The ongoing inclusion of both the stamp and the model flexibility term in the Agreement is apt to mislead.
I consider that it is necessary and appropriate to correct these errors by removing the stamp and the model flexibility term from the Agreement, as proposed by the Employer and the AMWU. This will ensure that the Agreement accurately reflects what was clearly intended by clause 46 to be subject to a flexibility agreement and will provide certainty in the application of this term. There are no grounds telling against the exercise of my discretion to vary the Agreement to correct these errors.
Accordingly, the errors will be corrected in the manner sought and as specified in the order that follows. The order will operate from the date of this decision.
Order
Pursuant to s 218A of the Act, I order that the Agreement be varied to correct obvious errors as follows:
(1) By deleting the stamp on the cover page of the Agreement, which states “Note – the flexibility term is taken to be a term of this agreement and can be found at the end of the agreement.”
(2) By deleting the model flexibility term which appears immediately after page 52 of the Agreement.
The published Agreement will contain the corrections described in the above order.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE524224 PR773545>
ANNEXURE 1
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