Virgin Tech Pty Ltd
[2024] FWCA 1885
•23 MAY 2024
| [2024] FWCA 1885 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Virgin Tech Pty Ltd
(AG2024/1120)
VIRGIN TECH (STORES) AGREEMENT 2023
| Airline operations | |
| COMMISSIONER WILSON | MELBOURNE, 23 MAY 2024 |
Application for approval of the Virgin Tech (Stores) Agreement 2023 – s.218A variation to correct or amend obvious error, defect or irregularity.
Approval
An application has been made for approval of an enterprise agreement known as the Virgin Tech (Stores) 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 Virgin Tech Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
The notification time for the Agreement under s.173(2) was 23 October 2023 and the Agreement was made on 24 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[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.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.
The Transport Workers' Union of Australia 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.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 May 2024. The nominal expiry date of the Agreement is 30 June 2026.
Variation
Section 218A provides for the variation of enterprise agreements 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.”
In recent decisions of the Fair Work Commission[2] (the Commission), it has been noted that s.218A of the Act is akin to the slip rule found in s.602 of the Act which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The purpose of the section is to remove the complexity associated with varying enterprise agreements which contain an obvious error, defect or irregularity by creating a simpler process for corrections to be made.
Before an amendment under s.218A can be made, the Commission must first be satisfied that an obvious error, default or irregularity (whether in substance or form) exists. If it is found that such an error, default of irregularity exists, the Commission may (not must) vary the agreement.
The Applicant on 7 May 2024 made an application under s.218A of the Act to correct or amend minor administrative errors within the Agreement in Clause 50.2(b), Clause 51.2, Clause 54.1, and Clause 56.2.
I sought the views of the Transport Workers' Union of Australia (TWU) on the s.218A application. The TWU consent to the variations being made in respect of Clause 50.2(b), Clause 51.2 and Clause 54.1. The TWU raised a concern that the amendment sought in relation to Clause 56.2 is narrower in construction than the Act.
I notified the parties on 15 May 2024 that I was disposed to accept the TWU’s proposal for amendment to Clause 56.2.
For the reasons set out above, I am satisfied that the errors in Clause 50.2(b), Clause 51.2, Clause 54.1 and Clause 56.2 are errors within the meaning of s.218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the employer covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(i) of the Act.
The variations sought with the amendment of the TWU will operate from the date the Agreement commences operation, 30 May 2024.
Order
I order, pursuant to s.218A of the Act, that the Agreement be varied as follows:
1. In Clause 50.2(b) the word ‘Team’ is removed and the clause begins:
“To provide care and support to a member of the Team Member’s Immediate Family…”.
2. In Clause 51.2 the word ‘Team’ is removed in some instances and the clause reads:
“a Team Member is entitled to 2 days of unpaid carer’s leave for each occasion to provide care or support to a member of the Team Member’s immediate family or a member of the Team Member’s household who requires care or support because of:”.
3. In Clause 54.1 the word ‘Team’ is removed in some instances and the clause reads:
“Team Members may access Compassion Leave in the following circumstances:
(a) Upon the death of an immediate family member or household member; or
(b) For the purposes of spending time with an immediate family member or household member who has a personal illness or injury that poses a serious threat to their life.”
4. In Clause 56.2 the word ‘Team’ is removed and the clause is amended to read:
““Domestic and family violence” is abusive and/or violent behaviour used by one person to control and dominate another person or persons within a domestic relationship and may include physical, sexual, financial, verbal or emotional abuse by a close relative of a person, a member of a person's household, or a current or former intimate partner of a person.”
The variation will operate from 30 May 2024. The published Agreement will contain the corrections described in the above order.
COMMISSIONER
Annexure A
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.
[2] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).
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