United Workers’ Union
[2024] FWCA 1213
•4 APRIL 2024
| [2024] FWCA 1213 |
| 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
(AG2024/847)
QUBE PORTS PTY LTD BRISBANE BULK AND GENERAL ENTERPRISE AGREEMENT 2023
| Road transport industry | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 4 APRIL 2024 |
Application for variation of the Qube Ports Pty Ltd Brisbane Bulk and General Enterprise Agreement 2023.
The United Workers Union (the Applicant) has made an application to the Fair Work Commission to vary an agreement to correct or amend errors, defects or irregularities, pursuant to s.218A of the Fair Work Act 2009 (Cth) (the FW Act). The application seeks an order pursuant to s.218A that varies or corrects Clause 5.0(h) of the Qube Ports Pty Ltd Brisbane Bulk and General Enterprise Agreement 2023[1] (the Agreement).
The Agreement was approved by the Commission on 21 December 2023 and commenced operation on 28 December 2023. The Applicant submits that the Agreement contains errors, defects or irregularities, the details of which are set out and considered below. Qube Ports Pty Ltd (Qube) consents to the application.
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 enterprise agreements to correct or amend an obvious error, defect or irregularity, relevantly 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 variation to the Agreement sought by the Applicant seeks to incorporate a limitation to the coverage clause at Clause 5.0(h) of the Agreement by amending the clause as follows (with proposed addition underlined):
“Employee means an employee covered by the classifications in this Agreement and engaged by the Employer at its 27 Whimbrel St, Port of Brisbane facility.”
On 26 March 2024, the Commission issued directions for the filing of material in support of the application, and the service of that material on the Construction, Forestry, Mining and Energy Union (CFMEU). The parties including the CFMEU confirmed on 26 March 2024 that they were content for the Commission to deal with the matter on the papers. On 2 April 2024, the Applicant and Qube jointly filed a statement of agreed facts and submissions in support of the application in compliance with the directions.
The statement of agreed facts sets out the background to the application and the bargaining process for the Agreement. On 5 October 2022, Qube issued a Notice of Employee Representational Rights (NERR) to the eight employees located at its 27 Whimbrel Street, Port of Brisbane Facility (Whimbrel Street premises) which read:[2]
“Qube Ports Pty Limited gives notice that it is bargaining in relation to an enterprise agreement (Qube Ports Pty Limited Bulk & General Enterpriise [sic] Agreement 2023) which is proposed to cover employees that are engaged by the company at its 27 Whimbrel St Port of Brisbane facility and are employed to perform work in or in connection with the receiving, handling, storage, preparation, dispatch, loading, unloading, transportation or distribution of goods, commodities or merchandise at the afore mentioned facility.”
The Applicant was appointed as employee bargaining representative. On 23 October 2023, the eight employees to be covered by the proposed Agreement unanimously voted in favour of the Agreement, and on 9 November 2023, Qube made an application to the Commission for the Agreement to be approved. The application included a representation by Qube that the employees covered by the Agreement were operationally and organisationally distinct from other Qube employees as they were employed at the Whimbrel Street premises and were engaged as Storeworkers and not performing stevedoring roles.[3]
The application listed the Storage Services and Wholesale Award 2020 and the Road Transport and Distribution Award 2020 as the Modern Awards underpinning the Agreement.[4]
In these proceedings the Applicant and Qube reiterated Qube’s prior representation above at [8], submitting that the Agreement was intended to cover only Qube’s employees at the Whimbrel Street premises, and that Qube does not intend or propose to employ any stevedoring employees at the Whimbrel Street premises.
The Applicant and Qube jointly submitted that the definition of “employees” at Clause 5.0(h) of the Agreement is erroneous because it is not confined to employees who are employed at the Whimbrel Street premises, and that as a result, the scope of the Agreement arguably, and unintentionally, could be said to extend to employees of Qube working at other locations.
The Applicant and Qube submitted that this omission was obviously an error in the Agreement, as demonstrated by the following:
(a)All bargaining representatives, including Qube, support the application to correct the error;
(b)The Agreement was a ‘rollover’ Agreement from its predecessor agreement (Qube Ports Pty Ltd Brisbane Bulk and General Enterprise Agreement 2019),[5] which had only been applied by Qube to employees working at the Whimbrel Street premises;
(c)The NERR issued to Qube’s employees had clearly articulated the intended scope of the proposed Agreement;
(d)During bargaining for the Agreement, Qube did not make any proposal to change the scope of the proposed rollover Agreement; and
(e)The eight employees of Qube working at the Whimbrel Street premises were not informed of any change to the scope of the proposed Agreement during negotiations for the Agreement (because there was no intended change).
The Applicant and Qube jointly submitted that the Commission should exercise its discretion to grant the application to correct the error in the interests of:
(a)Avoiding unnecessary litigation arising from the error in Clause 5.0(h); and,
(b)Ensuring the Agreement unambiguously covers and applies to the employees to whom it was intended to apply.
On 2 April 2024, the CFMEU informed the Commission, after having been served with the Applicant’s material, that it supported the application.
Conclusion
I am satisfied that the application to vary the Agreement has been made by an employee organisation covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(iii) of the Act.
For the reasons set out above, I am satisfied on reviewing the agreed statement of facts and submissions filed, that the omission of the limitation to the coverage clause at Clause 5.0(h) of the Agreement is an obvious error within the meaning of s 218A(1) of the Act. In these circumstances I am further satisfied that it is appropriate for the Commission to vary the Agreement to amend Clause 5.0(h) as sought by the Applicant. This will ensure that the Agreement is clear on its face and reflects what was intended by the Applicant and Qube and communicated to the employees at the Whimbrel Street premises.
Having regard to the above I will vary the Agreement by amending Clause 5.0(h) of the Agreement to read:
“Employee means an employee covered by the classifications in this Agreement and engaged by the Employer at its 27 Whimbrel St, Port of Brisbane facility.”
The variation sought will operate from 4 April 2024. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
<AE522904 PR773179>
[1] AE522904.
[2] Statement of Agreed Facts – 2 April 2024 (‘SAF’), [1]-[2].
[3] SAF [3]-[6].
[4] SAF [8].
[5] AE503490.
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