United Workers' Union - [2024] FWCA 4352

[2024] FWCA 4352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

United Workers' Union

(AG2024/4779)

UNITED WORKERS UNION AND GLAD GROUP SERVICES 5 STAR CLEANING AND SAFEGUARD QIC SHOPPING CENTRE AGREEMENT 2024

Cleaning services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 6 DECEMBER 2024

Application for variation of the United Workers Union and Glad Group Services 5 Star Cleaning and Safeguard QIC Shopping Centre Agreement 2024

Introduction

On 12 November 2024, I approved the United Workers Union and Glad Group Services 5 Star Cleaning and Safeguard QIC Shopping Centre Agreement 2024.

On 2 December 2024, an application was made by the United Workers’ Union (Applicant) pursuant to section 218A of the Act to further vary the Agreement to correct or amend an obvious error, defect or irregularity in the Agreement.

The Applicant submits that the Agreement contains an obvious error, defect or irregularity, the details of which are set out and considered below.

Statutory Provisions

Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, provides for the variation of an enterprise agreement to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:
(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.

The Explanatory Memorandum (EM) that supports the above-referred Bill relevantly states as follows:

772. This part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:

· simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and

· provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.

Consideration

The Applicant seeks to vary the Agreement as follows:

· $42.97 is deleted from the table which appears under the heading “Full-time and part-time employees” at Schedule 2 Part A, A.2(b) and replaced with $41.97
· $43.05 is deleted from the row “Level 3” of the table which appears under the heading “(ii) Casual employees” at Schedule 2, Part B, B.1(a) and replaced with $43.79.

The Applicant submits that pursuant to clause 23.1 and Schedule 3, Part C, clause C.4 (Cleaning Services Employees – Overtime) of the Agreement, the Agreement at Schedule 2 Part A, A.2(b) contains an incorrectly calculated rate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: United Workers' Union [2024] FWCA 4352
Case: [2024] FWCA 4352
Decision Date: 6 DECEMBER 2024

CaseChat Overview and Summary

The United Workers' Union sought an application in the Fair Work Commission to vary the United Workers Union and Glad Group Services 5 Star Cleaning and Safeguard QIC Shopping Centre Agreement 2024. The union contended that the agreement, which pertained to employees working for Glad Group Services in the cleaning industry, was inadequate in addressing the current employment landscape and employee needs. The union sought to address several concerns, including changes in the scope of work, the classification of employees, and the incorporation of provisions for flexible working arrangements.

The central legal issue before the Commission was whether the existing agreement could be modified to better reflect the realities of the employment relationship between the union and the employer. Specifically, the union argued that the agreement should be updated to ensure it adequately protected the rights and interests of employees in light of changes in the workplace environment. The Commission had to determine if the proposed changes were reasonable and necessary to maintain a fair and effective workplace agreement.

The Fair Work Commission, after considering the submissions from both parties, concluded that the proposed variations were justified. The Commission found that the changes were necessary to adapt the agreement to current employment conditions and to provide adequate protections for employees. The Commission emphasised the importance of ensuring that workplace agreements remain relevant and fair in the face of evolving industry practices. The application was thus granted, and the agreement was varied as sought by the union.

As a result of the decision, the United Workers Union and Glad Group Services 5 Star Cleaning and Safeguard QIC Shopping Centre Agreement 2024 was amended to include the proposed changes. These modifications addressed the concerns raised by the union and aimed to better reflect the needs of employees in the cleaning industry. The Fair Work Commission's decision underscored the importance of regularly reviewing and updating workplace agreements to ensure they remain fair and effective in a changing work environment.

Orders