V/Line Corporation

[2024] FWCA 2823

[2024] FWCA 2823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

V/Line Corporation

(AG2024/2528)

V/LINE RAIL OPERATIONS AND ADMINISTRATIVE EMPLOYEES AGREEMENT 2023

Rail industry
COMMISSIONER LEE	MELBOURNE, 1 AUGUST 2024

Application for approval of the V/Line Rail Operations and Administrative Employees Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the V/Line Rail Operations and Administrative Employees 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 V/Line Corporation. 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. The Australian Rail, Tram and Bus Industry 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 41.5 - Public Holidays

However, noting clause 6(c) 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 8 August 2024. The nominal expiry date of the Agreement is 30 June 2027.

Variation

1. Along with their application the Applicant made an application under s.218A of the Act to vary the enterprise agreement to correct or amend an obvious error, defect or irregularity.

1. The Applicant sought to vary the following:

• amend clause 59.2 from ‘exceeds’ to ‘contains shifts exceeding’.

• correct the cross-referencing in the following clauses:

  oclause 10.1(g) references 110.1(a)(i) and should be 10.1(g).

  oclause 10.2(h) references 110.2(a) and should be 10.2(a).

  oclause 11.2(b) references 111.2(c) and 111.2(d) should be 11.2(c) and 11.2(d) respectively.

  oclause 11.2(c) references 111.1(c) and should be 11.1(c)

  oclause 11.2(d) references 111.2(b) and should be 11.2(b)

  oclause 11.3(a) references 111.4 and should be 11.4

  oclause 11.4(b) references 111.3 and should be 11.3

  oclause 11.5(a) references 111.5(e) and should be 11.5(e)

  oclause 11.5(e) references 111.1(c) and should be 11.1(c), 111.1(a) should be 11.1(a) and 111.1(b) should be 11.1(b)

• amend the references to the ‘Queen’s birthday’ in clauses 41.2(f), 106.1(i), 129.1 and 129.7 to the ‘King’s Birthday’.

• amend the title of clause 2 from ‘COVERAGE’ to ‘CONTENTS’.

• amend clause 2 which contains the table of contents to include clauses 119 to 126.

• amend the page reference for SCHEDULE A – RATES TABLE in the table of contents at clause 2 from ‘1172’ to ‘117’.

• amend the page reference for SCHEDULE B – CLASSIFICATION TABLE in the table of contents at clause 2 from ‘117’ to ‘125’.

• amend the title ‘SCHEDULE B – CLASSIFICATION TABLE’ in the table of contents at clause 2 to ‘SCHEDULE B – CLASSIFICATION STRUCTURES AND DEFINITIONS’.

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 the employer covered by the agreement.

1. I am satisfied that the agreement should be varied to correct the errors listed in paragraph 8 of this decision.

Order

1. I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct the obvious errors, defects or irregularities listed in paragraph 8 of this Decision.

1. The variation will operate from 1 August 2024.

COMMISSIONER

Annexure A

[1] PR777749.

Printed by authority of the Commonwealth Government Printer

<AE525648  PR777748>