Ventia Pty Ltd T/A Ventia Pty Ltd
[2024] FWCA 4101
•25 SEPTEMBER 2024
[2024] FWCA 4101
The attached document wholly replaces the previous document with code [2024] FWC 2658 to correct document referencing.
Associate to Deputy President Grayson
Dated 25 November 2024
| [2024] FWCA 4101 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Ventia Pty Ltd T/A Ventia Pty Ltd
(AG2024/3299)
VENTIA TRANSPORT INFRASTRUCTURE SERVICES (NEW SOUTH WALES) PATROLLERS AGREEMENT 2024
| Miscellaneous | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 25 SEPTEMBER 2024 |
Application for approval of the Ventia Transport Infrastructure Services (New South Wales) Patrollers Agreement 2024.
Ventia Pty Ltd T/A Ventia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Ventia Transport Infrastructure Services (New South Wales) Patrollers Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Transitional arrangements under the Secure Jobs, Better Pay amendment
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 12 June 2024 and the Agreement was made on 27 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
National Employment Standards (NES) Precedence Term
Appendix E clause 1.2.2 appears to provide that in the case of termination, if employees do not give the full period of notice of resignation required, ‘the Employer has the right to withhold monies due to the Employee to a maximum amount equal to the amount’ of notice required to have been provided by the employee. This clause does not appear to limit the source that the monies may be deducted from and appears to permit the employer to withhold monies owing to the employee under the NES. Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act and the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 5 of the Agreement, this clause will be read and interpreted in conjunction with the NES.
The Form F17B lodged by the Employer raised the issue that a casual conversion clause had been omitted unintentionally and accordingly, the Agreement does not provide for it. I consider that as the Agreement contains an NES precedence clause, and in circumstances where casual conversion clauses are not mandatory terms for inclusion in an enterprise agreement, the casual conversion scheme as per the Act will have application in relation to casual conversion.
Delegates’ Rights Term
The Agreement does not contain a delegates’ rights term that is in all respects no less favourable than the modern award, as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term from the Miscellaneous Award 2020 is taken to be a term of the Agreement, and the delegates’ rights term at clause 44 has no effect.
Better Off Overall Test (BOOT) Issues
The Commission wrote to the parties seeking responses to, among other issues that had been identified, better off overall test (BOOT) concerns in relation to the Agreement.
I have had regard to the submissions of the Applicant in considering whether the Agreement passes the BOOT. It is on the basis of the acceptance of the submissions that I consider these BOOT concerns to be satisfied.
Section 190 Undertakings
The employer 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.
Section 186, 187, 188 and 190
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.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 October 2024. The nominal expiry date of the Agreement is 25 September 2028.
Variation
Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.
It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity – and no further.
Relevantly, it was identified that clause 6 of the Agreement defines a ‘Continuous Shift Work Employee’. This definition did not provide that it applied for the purposes of the NES, as is required by s.196 of the Act.
On 23 September 2024, the Employer agreed to the Commission’s proposal to vary the Agreement pursuant to s.218A of the Act to correct the error as follows, with the correction in underlined text:
‘Continuous Shift Work Employee’ means a Full-time or Part-time Employee consistently engaged to work or working continuous Shift Work. This definition applies for the purposes of the Act.’
I am satisfied that the error in [13] above is an error, defect or irregularity within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify this error ([PR781615]). The variation will operate from the date the Agreement commences.
The Agreement attached to this Decision is the Agreement as varied and will operate from 2 October 2024.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE526174 PR781611>
ANNEXURE A
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