S&DH Enterprises Pty Ltd T/A S&DH Enterprises Pty Ltd

[2024] FWCA 2180

[2024] FWCA 2180

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

S&DH Enterprises Pty Ltd T/A S&DH Enterprises Pty Ltd

(AG2024/1877)

S&DH ENTERPRISES PTY LTD, COLLIE BATTERY ENERGY STORAGE SYSTEM – PROJECT GREENFIELDS AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 18 JUNE 2024

Application for approval of the S&DH Enterprises Pty Ltd, Collie Battery Energy Storage System – Project Greenfields Agreement

1. An application has been made for approval of a greenfields agreement known as the S&DH Enterprises Pty Ltd, Collie Battery Energy Storage System – Project Greenfields Agreement (the Agreement). The application was made by S&DH Enterprises Pty Ltd T/A S&DH Enterprises Pty Ltd pursuant to s 185 of the Fair Work Act 2009 (the Act).

1. 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), the Construction, Forestry and Maritime Employees Union (CFMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are 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.

1. Pursuant to s 53(2)(b) of the Act I note the Agreement was made with the AMWU, CFMEU and the CEPU and that the Agreement covers these organisations.

1. The Applicant has opted to rely on the National Employment Standards (NES) precedence clause at clause 5.3 of the Agreement to address the following issues:

(a)clause 47(e) of the Agreement provides that an employee must notify their manager at least one hour prior, and clause 50(6) provides that an employee must notify their manager at least two hours prior, to the commencement of their rostered start time for that day, of their inability to attend for duty. This appears to be inconsistent with s 107(2)(a) of the Act which provides that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

(b)clause 49(2) of the Agreement provides that the employer and the majority of employees may agree to substitute a nominated public holiday to another day. This appears to be inconsistent with s 115(3) of the Act which provides that such substitution may only occur by agreement between the employer and an employee.

(c)clause 20(1) of the Agreement provides that nothing in the Agreement shall affect the company's right to dismiss an employee for misconduct without notice and in such a case the employee shall be paid wages only up until the time of dismissal. However, this appears to go further than the conduct contemplated by s 123 of the Act, which provides that the period of notice does not apply to employees dismissed for serious misconduct.

(d)clause 17(3) of the Agreement excludes casual employees from receiving paid entitlements (excluding long service leave), rather, casual employees will instead receive leave without pay in such circumstances. This is inconsistent with s 106A of the Act which provides 10 days paid domestic violence leave each 12-month period to all employees (i.e., full-time, part-time and casuals).

Variation of the Agreement

1. In recent decisions of the Commission,[1] it has been noted that s 218A of the Act is akin to the slip rule found in s 602 of the Act 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. The purpose of the section is to remove the complexity associated with varying enterprise agreements which contain an obvious error, defect, or irregularity by creating a simpler process for corrections to be made.

1. Before an amendment under s 218A can be made, the Commission must first be satisfied that an obvious error, default, or irregularity (whether in substance or form) exists. If it is found that such an error, default of irregularity exists, the Commission may (not must) vary the agreement.

1. There are several typographical and other issues with the Agreement including the following:

a)when the application was filed, it was accompanied with a copy of the Agreement that omitted page 28 of the Agreement. This page included the consultation provision of the Agreement at clause 56 in addition, to part of clause 55 Site Security.  The Commission has no reason to question that the Agreement as made included page 28 and its omission from the Agreement on filing was an inadvertent error; 

b)the table of contents of the Agreement contains a typographical error, with clause two mistakenly listed as clause one, clause three as clause two, and this pattern continues for the entirety of the document;

c)clause 58 is mistakenly listed in the table of contents of the Agreement instead of clause 57, such that clause 58 does not exist and is actually intended to refer to clause 57; and

d)clause 30 (Meal Break – Day Work) is absent from the contents page of the Agreement.

1. I sought the views of the Applicant and bargaining representatives on varying the Agreement to correct the typographical errors and the omission of page 28 of the Agreement.  Neither the bargaining representatives nor the Applicant objected to the proposed variations. 

1. For the reasons set out above, I am satisfied that the errors as listed at paragraph [7] of the decision, are errors within the meaning of s 218A(1) of the Act.

1. Further, I am satisfied that this Commission of its own initiative may vary the Agreement such that:

1. omitted page 28 of the Agreement will be included; and

2. an amended table of contents page of the Agreement will be included such that the clauses will be correctly listed and aligned with the body of the Agreement. 

1. The variation will operate from the date the Agreement commences operation, 25 June 2024.

Approval

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 25 June 2024. The nominal expiry date of the Agreement is 18 June 2027.

DEPUTY PRESIDENT

[1] Application by Buller Ski Lifts Pty Ltd [2023] FWCA 844, [10] and Application by BHP Coal Pty Ltd [2023] FWCA 115, [4].

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