Woolworths Group Limited
[2024] FWCA 4077
•22 NOVEMBER 2024
| [2024] FWCA 4077 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Woolworths Group Limited
(AG2024/4005)
MELBOURNE FRESH DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2024
| Storage services | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 22 NOVEMBER 2024 |
Application for approval of the Melbourne Fresh Distribution Centre Enterprise Agreement 2024
Introduction
Woolworths Group Limited (the Employer) has made an application for approval of an enterprise agreement known as the Melbourne Fresh Distribution Centre Enterprise 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 28 February 2024 and the Agreement was made on 2 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
Model Flexibility Term
The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
Section 186, 187, and 188
Subject to the undertakings referred to above, 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.
Section 183 Bargaining Representatives
The Shop, Distributive and Allied Employees’ Association (SDA) and United Workers’ Union (UWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.
In accordance with s.201(2), I note that the Agreement covers the SDA and the UWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 November 2024. The nominal expiry date of the Agreement is 28 April 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 9.4 of the Agreement, which defines a shiftworker, provided as follows:
If you are a 7 day continuous shift worker, who is regularly rostered to work (and actually works) Sundays and Public holidays (as defined by the Act or Award), you will be entitled to an additional week’s annual leave per year of service.
The employees subject to the coverage of the Agreement would, but for the Agreement be covered by the Storage Services and Wholesale Award 2020 (the Award). The Award provides the following definition of a shiftworker:
A shiftworker is a 7 day shiftworker who is regularly rostered to work on Sundays and public holidays.
Where an employee is covered by an enterprise agreement, and a modern award which covers the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards (NES), the Commission must be satisfied that the agreement defines or describes the employee as a shiftworker for the purposes of the NES. The definition at [10] above, in that it included the words ‘(and actually works)’ and ‘(as defined by the Act or Award)’ did not satisfy this requirement.
On 18 November 2024, the Employer agreed to the Commission’s proposal to vary the Agreement pursuant to s.218A of the Act to correct the error by replacing the definition with the following definition:
If you are a 7 day continuous shift worker, who is regularly rostered to work Sundays and Public holidays you will be entitled to an additional week’s annual leave per year of service. This definition applies for the purposes of the NES.’
I am satisfied that the error set out in [10] 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 the error ([PR781523]). 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 29 November 2024.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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