Riversands Vineyards PL ATF The Blackwatch Trust Ltd T/A Riversands Vineyards PL
[2024] FWCA 1337
•26 APRIL 2024
| [2024] FWCA 1337 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
Riversands Vineyards PL ATF The Blackwatch Trust Ltd T/A Riversands Vineyards PL
(AG2024/1250)
RIVERSANDS VINEYARDS PTY LTD ENTERPRISE AGREEMENT 2023
| Agricultural industry | |
| COMMISSIONER HUNT | BRISBANE, 26 APRIL 2024 |
Application for variation of the Riversands Vineyards Pty Ltd Enterprise Agreement 2023
The Riversands Vineyards Pty Ltd Enterprise Agreement 2023 (the Agreement) was approved by the Fair Work Commission (the Commission) on 8 February 2024. An undertaking dated 30 January 2024, providing three undertakings was provided and forms part of the decision to approve the Agreement.
On 6 March 2024, Riversands Vineyards PL ATF The Blackwatch Trust Ltd T/A Riversands Vineyards PL (the Employer) enquired with my chambers as to whether the first set of undertakings dated 6 December 2023 (the First Undertakings) are to apply as terms of the Agreement. I noted the undertakings approved with the Agreement (the Second Undertakings) dated 8 February 2024 did not include any of the undertakings made in the First Undertakings.
Communication was issued from my chambers to the Employer that due to an administrative error, chambers failed to inform the Employer that all of the concerns held by the Commission must be consolidated into one set of undertakings in order for the Agreement to be approved.
As the Agreement cannot be corrected once published, I proposed to vary the Agreement in accordance with s.218A of the Fair Work Act 2009 (the Act) to include the First Undertakings as these were important considerations in deciding to approve the Agreement, and I had incorrectly understood had been incorporated into the Second Undertakings.
The Employer advised that it has no submissions in respect to this matter.
Relevant Legislation
Section 218A came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. It 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.”
Consideration
The First Undertakings were provided to deal with the Commission’s concerns in respect of the Agreement:
“1. In relation to Clause 9.3(b), this shall be read to include “Any such agreement shall be made in writing”.
2. In relation to Clause 9.4(d) it shall be replaced with the following wording:
A casual employee engaged in work classified under Schedule A – Winery Employees, must be engaged for a minimum of 4 hours except where a casual is engaged to perform pruning or harvesting work and a weather event not expected at the start of the casual employee’s work is only required to be paid for a minimum of 2 hours work. A casual employee engaged in work classified under Schedule B – Horticulture Employees, must be engaged and paid for at least 2 consecutive hours of work on each occasion they are required to attend work.
3. In relation to clause 28.3, it shall be replaced with the following wording:
All hours required to be worked by a casual employee on a public holiday (both ordinary hours and any overtime) will be paid at the following rates:
Employees engaged in work classified under Schedule A – Winery Employees – 275% of the employee’s base rate of pay for their classification (inclusive of the casual loading).
Employees engaged in work classified under Schedule B – Horticulture Employees – 225% of the employee’s base rate of pay for their classification (inclusive of the casual loading).
4. In relation to Clause 14.1, clause 14.1 (c) will be added as follows:
All permanent employees will be engaged on the All Up Hourly Rate applicable to their type of engagement. The ‘Base Hourly Rate’ provided in 13.1(a) is used purely for the purpose of setting piece rates; and percentage calculations for junior rates.
5. In relation to Clause 23.3 of the Agreement, it shall be replaced to read as follows:
(a)All time worked in excess of 12 hours per engagement, 12 hours in a single day or the average of 38 hours per week will be deemed overtime.
(b)For employees engaged in work covered by the classifications in Schedule B of this Agreement, overtime will be paid at a rate of 175% of the employee’s hourly wage for their classification.
(c)For employees engaged in work covered by the classifications in Schedule A of this Agreement, overtime will be paid at a rate of 150% for the first 2 hours Monday to Saturday, then 200% thereafter and 225% for overtime performed on Sundays.
(d)All percentages are inclusive of casual loading.
(e)An employee will only work overtime if it has been directed and approved by the employer.
6. In relation to penalty rates for ordinary hours worked on weekends, clause 21.2 shall be added to read:
Employees engaged in work covered by the classifications in Schedule A of this Agreement who are engaged and paid at the base hourly rate will be paid weekend penalty rates for ordinary hours worked as follows:
(a) Saturdays – 125% of the base hourly rate (150% for casual employees)
(b) Sundays – 200% of the base hourly rate (225% for casual employees)”
As stated, in approving the Agreement, the First Undertakings which were made to overcome my concerns of the Agreement, were omitted from the Agreement when approved. This therefore contains a demonstrated error of omission as contemplated by s.218A of the Act.
In the recent decision of Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026,[1] Deputy President Masson observed as follows:
“[9] It is apparent from the text of s. 218A and the supporting EM that s. 218A is intended to overcome the statutory limitation imposed by s.602 of the Act that was most recently identified by the Full Bench in Advantaged Care Pty Ltd v Health Services Union (Advantaged Care). In that decision the Full Bench confirmed that the Commission could not amend the text of an agreement to correct an obvious error, defect or irregularity pursuant to s.602 of the Act and that other provisions within the Act, ss.201 or 217, might be used to rectify such error, defect or irregularity.
[10] There are limitations to the use of ss. 210 and 217 of the Act in varying an agreement to address an obvious error, defect or irregularity. For example, it may be considered costly and impractical to conduct a ballot of employees for the purpose of obtaining approval for the variation of an agreement pursuant to s. 210 of the Act, where the variation sought is not substantive. Section 217 might also not be amenable to correcting an obvious error, defect or irregularity where the error does not create uncertainty or ambiguity. It is accepted that s. 218A confers an additional discretion for the Commission to amend an error, defect, or irregularity in an agreement, be that in form or substance.” (footnotes omitted)
In the present case, the contended error is that of omitting to include First Undertakings when approved. The contended error which was not identified until after the Agreement was approved is arguably an error of substance and omission. A demonstrated error of omission would, in my view, fall within the scope of s.218A(1).
Having regard to the above, I am satisfied that the error in omitting the First Undertakings was an error that arose during the approval process.
Conclusion
For the reasons set out above, I am satisfied that the error contained in Agreement is an error within the meaning of s.218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the Commission at its own initiative, thus satisfying the requirements of s.218A(2)(a) of the Act.
The variation will operate from the operative date of the Agreement, being 19 February 2024. An order giving effect to this decision will be separately issued.
COMMISSIONER
[1] [2022] FWCA 4390.
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