The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) T/A Professionals Australia

[2024] FWCA 2361

[2024] FWCA 2361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) T/A Professionals Australia

(AG2024/2059)

APESMA ENTERPRISE AGREEMENT 2023

Miscellaneous
COMMISSIONER LEE	MELBOURNE, 25 JUNE 2024

Application for approval of the APESMA Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the APESMA Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) T/A Professionals Australia. The Agreement is a single enterprise agreement.

1. 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.

1. 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.

1. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Australian Municipal, Administrative, Clerical and Services Union 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. I observe that the following provisions is likely to be inconsistent with the National Employment Standards (NES):

·           Clause 14.2.6 - Severance Payment.

However, noting clause 7(ii) 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 July 2024. The nominal expiry date of the Agreement is 30 June 2026.

Variation

1. On 20 June 2024 the Applicant made an application under s.218A of the Fair Work Act 2009 (Cth) to vary the enterprise agreement to correct or amend an obvious error, defect or irregularity.

1. The Applicant sought to vary the Agreement so that the minimum rate of pay at 1 July 2024 for a Level 4 Specialist Staff in Appendix 4 of the Agreement would be corrected from ‘$113,87’ to ‘$113,870’. The Applicant submits that this was a typographical error and represents an obvious irregularity, error or defect.

1. Section 218A of the Act came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is 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.”

1. Considering s.218A(2)(b)(i) of the Act, the Fair Work Commission may vary an enterprise agreement on application by one or more of the employers covered by the agreement.

1. I am satisfied that the agreement should be varied to correct the errors in the following terms:

·   At Appendix 4 of the Agreement, the minimum rate of pay for a Level 4 Specialist Staff at 1 July 2024 will be read as ‘$113,870’.

Order

1. I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct the obvious error by correcting the minimum rate of pay for a Level 4 Specialised Staff as at 1 July 2024.

1. The variation will operate from 25 June 2024.

COMMISSIONER

Annexure A

[1] PR776384.

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<AE525188  PR776383>