UGL Rail Services Pty Ltd

[2023] FWC 605

[2023] FWC 605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A—Application to vary an enterprise agreement to correct or amend obvious error etc

UGL Rail Services Pty Ltd

(AG2022/5186)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 15 MARCH 2023

Application to vary the UGL Spotswood Maintenance Centre Enterprise Agreement 2022 to correct or amend obvious error etc

1. The UGL Spotswood Maintenance Centre Enterprise Agreement 2022 (Agreement) was approved by the Commission on 21 June 2022 and commenced operation on 28 June 2022 with a nominal expiry date of 20 September 2024.[1] The Agreement covers UGL Rail Services Pty Ltd (UGL), UGL’s employees at the Spotswood Maintenance Centre employed in identified classifications and three registered organisations – the Australian Rail, Tram and Bus Union (RTBU); the Automotive Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU); and the Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).[2]

1. Clause 10 of the Agreement is titled “Hours of Work and Related Matters” and relevantly sets out the following hours of work arrangements for working ordinary hours for rotating roster employees in clause 10.2.2:

An average of 38 hours per week, averaged over a period of 52 weeks, worked as 10.83 hour shifts, which may be rostered on any day of the week, Monday to Sunday inclusive.

1. Clause 11.2 of the Agreement deals with overtime and relevantly provides:

Where a Rotating Shift Employee works more (than) 10.5 hours per day Monday to Saturday, they shall be paid at the rate of 150% of their Ordinary Hourly Rate for the first 3 hours and then at 200% of their Ordinary Hourly Rate for all hours thereafter. Overtime worked on a Sunday will be paid at 200% of their ordinary hours.

1. In contrast the corresponding provisions for day shift employees provide that ordinary hours of work will be “38 hours per week, to be worked as 7.6 hours per day” with a specified span of hours during Monday to Friday (clause 10.2.1); and if “a Day Shift Employee works more (than) 7.6 hours during Monday to Friday” specified overtime penalty rates will be paid (clause 11.1).

1. A “Rotating Roster” means “work carried on with consecutive shifts of employees throughout the 24 hours of each day Monday to Sunday inclusive without interruption except for breakdowns or meal breaks or due to unavoidable causes beyond the control of the Company” (clause 4.11).

1. Annexure A to the Agreement sets out the “Classification and Annualised Salaries and Ordinary Hourly Rates” for rotating roster employees. Relevantly, for the pay rates said to commence from the first pay period on or after 1 October 2022 there is a notation as follows:

“^Rostered hours are based on 10.83 hours worked per day.”

1. UGL contends that the reference in clause 11.2 to “10.5 hours” is an error and should correctly provide “10.83 hours” consistently with the permissible daily ordinary hours of work for a Rotating Shift Employee. UGL applies, inter alia, for the Commission to vary the Agreement under s 218A of the Fair Work Act 2009 (Cth) (Act) to correct or amend an obvious error, defect or irregularity. The AMWU has filed written submissions in support of UGL’s application in which UGL and the other unions covered by the Agreement join.

1. Section 218A of the Act provides:

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; or

(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. Section 218A of the Act is akin to the slip rule found in s 602 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. Section 218A was inserted by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Amendment Act), which received royal assent on 6 December 2022 and commenced in part the following day. Part 17 of Schedule 1 of the Amendment Act commenced on 7 December 2022. In the result s 218A of the Act commenced on that day. Its evident purpose is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

1. It is plainly the case, when regard is had to the hours of work, overtime and pay rates provisions of the Agreement as a whole, that overtime under the Agreement is intended to be paid for hours worked in excess of, or outside the permissible spread for working ordinary hours. It is not intended that overtime is payable for work that is plainly performed during ordinary hours. But this would be the effect of a literal reading of clause 11.2 of the Agreement – the final 0.33 of the rostered ordinary time permitted by clause 10.2.2 and factored into the pay scales as ordinary time would be paid as overtime.

1. This is a case of obvious error which should be corrected. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement. I propose to amend clause 11.2 of the Agreement by deleting “10.5 hours” and inserting “10.83 hours”. I also propose to add the word “than” after the word “more” in each of clauses 11.1 and 11.2. The word “than” is in my view obviously erroneously omitted from the identified provisions, the omission is in the nature of a typographical error, and the Agreement should also be corrected to include the word in each clause.

Order

1. I order, pursuant to s 218A of the Fair Work Act 2009 (Cth), that the UGL Spotswood Maintenance Centre Enterprise Agreement 2022 be amended to correct obvious errors as follows:

1.   In clause 11.1 after the word “more” add the word “than”; and

2.   In clause 11.2 delete the numbers and word “10.5 hours” and insert in their place “than 10.83 hours”

DEPUTY PRESIDENT

Hearing details:

Determined on the papers.

[1] Re UGL Rail Services Pty Ltd[2022] FWCA 2003

[2] Clause 3, UGL Spotswood Maintenance Centre Enterprise Agreement 2022

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