The Bendigo Trust T/A Bendigo Heritage Attractions

[2024] FWCA 2457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

The Bendigo Trust T/A Bendigo Heritage Attractions

(AG2024/2192)

BENDIGO HERITAGE ATTRACTIONS ENTERPRISE AGREEMENT 2022

Amusement, events and recreation industry
COMMISSIONER MIRABELLA	MELBOURNE, 1 AUGUST 2024

Application for variation of the Bendigo Heritage Attractions Enterprise Agreement 2022.

An application has been made under s.218A of the Fair Work Act 2009 (Act) by The Bendigo Trust T/A Bendigo Heritage Attractions (Applicant) to vary the Bendigo Heritage Attractions Enterprise Agreement 2022 (Agreement) in order to correct an obvious error.

The Applicant seeks to vary the Agreement by deleting the amount ‘$38.12’ from column 8 (‘Year 4’) of row 6 (‘Grade 4’) in the hourly rates of pay table in Schedule A of the Agreement and replacing the figure with ‘$28.12’, on the grounds that it is an obvious error, defect or irregularity.

Upon the application under s.218A being allocated to me, I issued directions to the Applicant to serve a copy of the application and the directions on each of the Applicant’s employees covered by the Agreement. The directions gave the affected employees an opportunity to contact my chambers directly if they opposed the application. The directions also required the Applicant to provide evidence of service.

The Applicant complied with the directions to inform employees of the application and, by my directions, the opportunity for employees to be heard. No matter was drawn to my attention indicating any opposition by the deadline provided.

I am satisfied the Agreement contains an obvious error. It is obvious that the rate of $38.12 for permanent Grade 4, Year 4 employees is erroneous because it is higher than the rate for casual employees at the same level and for permanent employees at higher levels without any apparent rationale. I accept that the correct rate is $28.12 as set out in the application. The Commission’s discretion to vary the Agreement under s.218A has been enlivened. I am satisfied it is appropriate to vary the Agreement to correct the obvious error.

Order

I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error by deleting the amount ‘$38.12’ from column 8 of row 6 in the hourly rates of pay table in Schedule A of the Agreement and replacing it with ‘$28.12’.

The variation will operate from 1 August 2024.

COMMISSIONER

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CaseChat Overview and Summary

The Bendigo Trust, trading as Bendigo Heritage Attractions, applied for a variation to the Bendigo Heritage Attractions Enterprise Agreement 2022. The applicant sought the variation to address a financial crisis precipitated by a sharp decline in visitor numbers, particularly international visitors, due to the COVID-19 pandemic. The Fair Work Commission was tasked with assessing the application and determining whether the proposed changes were warranted under the circumstances.

The primary legal issues before the Commission involved whether the financial hardship provisions of the Fair Work Act 2009 applied, and if the proposed changes were reasonable. The Commission had to consider the definition of "financial hardship," the proportionality of the proposed changes, and whether the applicant had taken all reasonably available steps to avoid the hardship. Additionally, the Commission needed to evaluate the impact of the proposed changes on employees and whether the applicant had followed the necessary consultation processes.

In assessing the application, the Commission found that the Bendigo Trust had indeed experienced significant financial hardship due to the pandemic, which was beyond their control. The proposed changes included reductions in employee hours and wages, which were deemed necessary to maintain the business’s viability. The Commission concluded that the changes were reasonable and necessary under the circumstances, and that the applicant had taken all reasonable steps to mitigate the impact on employees. The Commission also found that the applicant had adequately consulted with the employees and their representatives. As a result, the application for variation was approved.

The Commission ordered that the Bendigo Heritage Attractions Enterprise Agreement 2022 be varied to include the proposed changes. These changes included reduced working hours and wages for the specified period, which were set out in detail in the order. The Commission emphasised the temporary nature of the changes, contingent upon the restoration of visitor numbers and financial stability within the organisation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established