SVG Structures WA Pty Ltd
[2021] FWCA 6103
•4 OCTOBER 2021
| [2021] FWCA 6103 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
SVG Structures WA Pty Ltd
(AG2021/7329)
SVG STRUCTURES WA PTY LTD ENTERPRISE AGREEMENT 2021
Building, metal and civil construction industries | |
DEPUTY PRESIDENT MASSON | MELBOURNE, 4 OCTOBER 2021 |
Application for approval of the SVG Structures WA Pty Ltd Enterprise Agreement 2021 – s 217 application made to vary the Agreement to remove ambiguity or uncertainty – applications granted.
[1] An application has been made for approval of an enterprise agreement known as the SVG Structures WA Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by SVG Structures WA Pty Ltd (SVG). The Agreement is a single enterprise agreement.
[2] Subsequent to the application for approval of the Agreement, SVG also filed an application pursuant to s 217 of the Act to vary the Agreement to remove an ambiguity or uncertainty. It is to that application I turn first.
Section 217 Application
[3] The uncertainty or ambiguity is said to arise in relation to the Rates of Pay set out in a table in Appendix 1 of the Agreement which provide as follows;
Rates of Pay:
Position | Minimum Weekly Wage | Minimum Hourly Base Rate of Pay | Minimum Casual Hourly Rate (including 25% casual loading) |
C1a | $ 878.56 | $ 23.12 | $ 36.96 |
C1b | $ 896.04 | $ 23.58 | $ 35.95 |
C1c | $ 907.82 | $ 23.89 | $ 34.30 |
C1d | $ 924.54 | $ 24.33 | $ 33.09 |
C2 | $ 942.78 | $ 24.81 | $ 31.01 |
C3 | $ 1,005.86 | $ 26.47 | $ 30.40 |
C4 | $ 1,042.72 | $ 27.44 | $ 29.86 |
C5 | $ 1,092.88 | $ 28.76 | $ 29.48 |
C6 | $ 1,123.66 | $ 29.57 | $ 28.90 |
[4] As can be seen, the rates of pay in the table reproduced above are expressed in ascending monetary amounts from C1a to C6 for weekly wage rates (Column 1) and minimum hourly rates (Column 2). However, the minimum casual hourly rates (Column 3) which are stated to include a 25% casual loading are expressed in a descending order of monetary value from C1a to C6. The effect of the difference can be seen in that the minimum casual hourly rate for C6 is less than the minimum hourly rate for that same classification. Conversely, the casual minimum hourly rate of pay for C1a is approximately 60% higher than the minimum hourly rate of pay for that classification and not 25% as stated in the Column 3 heading. Save for the C2 classification none of the other minimum casual hourly rates of pay in Column 3 equate to 25% above the relevant minimum hourly rate of pay in column 2.
[5] The Applicant submits that in preparing the table an error was made in that the minimum casual hourly rates in Column 3 were reversed from an ascending to descending order of monetary value. It further submits that the errors create uncertainty and ambiguity in relation to the applicable hourly rates for casual employees. Bargaining representatives were invited to comment on the application to vary the Agreement sought by the Applicant and did not object to the application.
[6] A question that the s 217 application raises is whether the Agreement can be varied in the manner sought by the Applicant as part of my consideration of approval of the Agreement. The answer to that question is yes in my view for the reasons that follow.
[7] Section 217 provides for the variation of enterprise agreements to remove ambiguity or uncertainty as follows:
(1) FWA may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.
[8] There are a number of conditions precedent necessary for the exercise of discretion under s 217. An application must have been made by one of the parties set out in ss 217(1)(a)-(c). The application has been made by SRV which is the employer that is covered by the Agreement thus satisfying that requirement. There must also be an enterprise agreement that is the subject of the application. In the present case the Agreement has not yet been approved however that is not a barrier to the use of s 217 for the following reasons;
[9] An enterprise agreement is defined at s 12 of the Act to mean;
(a) A single-enterprise agreement; or
(b) a multi-enterprise agreement.
[10] A single-enterprise agreement is defined in s 12 of the Act to mean “an enterprise agreement made as referred to in sub-section 172(2)”. Section 172(2) of the Act relevantly states that;
“An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement: or
……………………”
[11] An enterprise agreement is made pursuant to s 182(1) of the Act in the following circumstances;
“(1) If the employees of the employer or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”
[12] It is apparent on the material filed with the application for approval of the Agreement that employees were requested by SVG to approve the Agreement by voting on it (s 181(1)) in a ballot conducted on 31 August 2021 to 1 September 2021. A valid majority of employees who participated in the ballot approved the Agreement which was made on 1 September 2021 (s 182(1)). As the Agreement was made on 1 September 202,1 it follows that it is an enterprise agreement made pursuant to s 172(2) and as defined under s 12 of the Act. As it is an enterprise agreement as defined under the Act, I am satisfied that it may be varied pursuant to an application made under s 217 of the Act.
[13] Returning now to the merits of the application, I find that the provisions in Appendix 1 of the Agreement which deal with minimum casual hourly rates of pay are ambiguous or uncertain. The Agreement is consequently varied as follows;
(i) by deleting the existing Rates of Pay table in Appendix 1 of the Agreement as reproduced above at [3] above; and
(ii) inserting the following Rates of Pay table in Appendix 1 of the Agreement;
Rates of Pay:
Position | Minimum Weekly Wage | Minimum Hourly Base Rate of Pay | Minimum Casual Hourly Rate (including 25% casual loading) |
C1a | $ 878.56 | $ 23.12 | $ 28.90 |
C1b | $ 896.04 | $ 23.58 | $ 29.40 |
C1c | $ 907.82 | $ 23.89 | $ 29.86 |
C1d | $ 924.54 | $ 24.33 | $ 30.40 |
C2 | $ 942.78 | $ 24.81 | $ 31.01 |
C3 | $ 1,005.86 | $ 26.47 | $ 33.09 |
C4 | $ 1,042.72 | $ 27.44 | $ 34.30 |
C5 | $ 1,092.88 | $ 28.76 | $ 35.95 |
C6 | $ 1,123.66 | $ 29.57 | $ 36.96 |
[14] An order giving effect to this variation will take effect from the date of operation of the Agreement, that being 11 October 2021.
Application for approval of the Agreement
[15] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.
[16] 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.
[17] I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 2.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.
[18] The Agreement is approved and, in accordance with s 54 of the Act, will operate from 11 October 2021. The nominal expiry date of the Agreement is 3 October 2025.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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Annexure A
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