Stramit Corporation Pty Limited T/A Stramit Building Products

[2022] FWCA 2812

[2022] FWCA 2812

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Stramit Corporation Pty Limited T/A Stramit Building Products

(AG2022/2429)

Stramit Knoxfield Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 18 AUGUST 2022

Application for approval of the Stramit Knoxfield Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Stramit Knoxfield Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Stramit Corporation Pty Limited T/A Stramit Building Products. The Agreement is a single enterprise agreement.

1. The Agreement lodged contained an error at clause 1(c) of Appendix G which provides for the payment of an hourly leading hand allowance. The Applicant, together with the Australian Manufacturing Workers' Union (AMWU) maintain that the incorrect rates table was mistakenly included prior to finalising the Agreement ahead of the Access Period by way of a drafting error. Together with the application documents, the Applicant filed a version of the Agreement containing the correct rates table at clause 1(c) of Appendix G. In addition, the Applicant filed a letter with the Commission seeking a correction by way of s.586 of the Act to insert the correct leading hand allowance table to reflect the in-principal agreement. The Applicant advised the Commission that it would formally withdraw the application in the event that a correction by way of s.586 was not forthcoming. A copy of the Applicant’s letter is attached at Annexure A.

1. The preliminary view expressed to the Applicant and bargaining representatives was that s.586 may be limited to make the correction requested and that the application should be withdrawn. On receipt of this view, the Applicant and the AMWU sought to be heard in relation to the proposed amendment.

1. I listed the matter for a Conference on 18 August 2022 to hear from the parties with a view to resolving the outstanding concern. In attendance were representatives from the AMWU, two leading hand employees that were also bargaining representatives, and the Applicant’s representatives. The AMWU submitted that the corrected table reflects the genuine intent of the in-principal agreement and referred to the Full Bench decision in Australian Nursing and Midwifery Federation v Domain Aged Care (QLD) Pty Ltd T/A Opal Aged Care (ANMF v Opal)[1] as authority that the Commission has the power to make the requested correction pursuant to s.586. It also pressed the unanimous agreement among all leading hands, the bargaining representatives, and the Applicant regarding the intent to correct the error to reflect the intended allowance as genuinely agreed.

1. Further submissions were made by the Applicant outlining the consultation with each leading hand affected by the error, the toolbox meetings and referred to the materials disseminated and agreed upon during bargaining which all confirmed agreement on the correct table. The two leading hand employees conveyed the intent of the Agreement, affirmed that genuine agreement was made as reflected in Annexure A and sought a practical and timely resolution to the error.

1. Having considered the submissions of the AMWU, the Applicant, the bargaining representatives and the materials submitted for the approval of the Agreement I am satisfied that there is unanimous support to correct the error, that the error was an obvious error, and should an approach be taken other than correction pursuant to s.586 of the Act, the same outcome would be achieved, with the only effect being further delay to the wage adjustments as reflected in the Agreement.

1. In view of the principles relied on by the AMWU in ANMF v Opal[2] I am also mindful of the principles in Advantaged Care Pty Ltd v Health Services Union[3] which gives rise to a different approach in respect to the manner in which an agreement may be amended or corrected. In ANMF v Opal two members of the Full Bench concluded that the use of s.586 of the Act should be used sparingly but in that case the type of obvious error was amendable to correction. However, Commissioner McKenna separately considered the use of s.586 and determined that the Commission did not have powers to determine or change terms of an enterprise agreement.[4] Commissioner McKenna’s reasoning is more in line with the views of the Full Bench in Advantaged Care Pty Ltd v Health Services Union, which while considering the relevance of s.602(1) determined that the appropriate avenue to correct enterprise agreements is through s.210 or s.217 of the Act, based on the reasoning that an enterprise agreement is made when a majority of employees cast a valid vote and the Commission’s role is in approving the Agreement when satisfied that the statutory criteria has been met.

1. In order to affect a practical and efficient solution, and while I am inclined to ordinarily take a different view to the AMWU, in this instance, I haven taken into account the material before me that reflects the genuine agreement concerning the correct table at clause 1(c) in Appendix G, and agree to affect the correction pursuant to s.586 of the Act.

Application for approval

1. I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. I observe that clauses 33.2, 43.2 and 46 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 9.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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

1. The Agreement is approved and in accordance with s.54, will operate from 25 August 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 1716 at [52] and [54].

[2] Ibid.

[3] [2021] FWCFB 453.

[4] [2019] FWCFB 1716 at [71]-[73].

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