Van Diemen’s Land Dairy Pty Ltd

[2023] FWCA 3051

[2023] FWCA 3051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Van Diemen’s Land Dairy Pty Ltd

(AG2023/3067)

BETTA MILK ENTERPRISE AGREEMENT (2023)

Food, beverages and tobacco manufacturing industry
COMMISSIONER LEE	MELBOURNE, 20 SEPTEMBER 2023

Application for approval of the Betta Milk Enterprise Agreement (2023)

1. An application has been made for approval of an enterprise agreement known as the Betta Milk Enterprise 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 Van Diemen’s Land Dairy Pty Ltd. The Agreement is a single enterprise agreement.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

1. The Australian Workers' Union (AWU) 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. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 September 2023. The nominal expiry date of the Agreement is 2 February 2025.

Variation

1. On 18 September 2023 the AWU lodged their Form F18. In the Form F18, the AWU advised the Commission that it disagreed with one or more statements in an employer’s declaration relating to the Agreement. The AWU set out the following:

1. Part 4 Wages and related matters, Clause 13 (d) i & ii (d) Employee salaries will be increased by 7.0% over 3 years of the Agreement according to the following timetable:

(i)4.0% which shall apply from the first full pay period commencing on or after 2 February 2023; and

(ii)3.0% which shall apply from the first full pay period commencing on or after 2 February 2024.

2. Clause number 4 identifies the following.

DATE AND PERIOD OF OPERATION This Agreement operates from the first full pay period 7 days after approval from Fair Work Commission and has a nominal expiry date of 2 February 2025.

3. Clause 4 replicates the agreed position throughout bargaining. The AWU Seek that Clause 13 has the wording adjusted to 7.0% over 2 years not 3 years.

1. On 19 September 2023 my Chambers sent correspondence to the Applicant raising the concerns raised by the Australian Workers' Union in the Form F18. The Applicant was advised that should they agree that this is an error, they may make an application to vary an enterprise agreement to correct or amend errors, defects or irregularities under s.218A of the Fair Work Act 2009.

1. On 19 September 2023 the Applicant responded with the following:

“We confirm that the clause 13 (d) was a drafting error and should have been drafted as follows:

Employee salaries will be increased by 7.0% over 2 years of the Agreement according to the following timetable:

(i)4.0% which shall apply from the first full pay period commencing on or after 2 February 2023 ; and

(ii)3.0% which shall apply from the first full pay period commencing on or after 2 February 2024.

The employer wishes to vary the wording to the above.”

1. Taking into consideration s.218A of the Act, I have determined to vary the enterprise agreement to correct or amend the errors.

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 one or more of the employers covered by the agreement.

1. I am satisfied that the agreement should be varied to correct the obvious errors. Clause 13(d) of the agreement is to be read as follows:

“Employee salaries will be increased by 7.0% over 2 years of the Agreement according to the following timetable:

(i)4.0% which shall apply from the first full pay period commencing on or after 2 February 2023; and

(ii)3.0% which shall apply from the first full pay period commencing on or after 2 February 2024.”

1. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement and correct the error.

Order

1. I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct the obvious errors by varying clause 13(d) of the Agreement.

COMMISSIONER

[1]PR766430.

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