XL Express (Personnel) Pty Ltd
[2024] FWC 1245
•13 MAY 2024
| [2024] FWC 1245 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.218A - application to vary an agreement to correct or amend errors, defects or irregularities
XL Express (Personnel) Pty Ltd
(AG2024/1213)
XL EXPRESS (PERSONNEL) ENTERPRISE AGREEMENT 2024
(ODN AG2024/131) [AE523669]
| Road transport industry | |
| DEPUTY PRESIDENT EASTON | SYDNEY, 13 MAY 2024 |
Application for variation of the XL Express (Personnel) Enterprise Agreement 2024.
XL Express (Personnel) Pty Ltd (the Employer) has made an application to vary the XL Express (Personnel) Enterprise Agreement 2024 (the Agreement). The application was made under s.218A of the Fair Work Act 2009 (Cth) (the Act).
The Agreement was approved on 27 February 2024 and commenced operation on 5 March 2024. XL Express (Personnel) submits that there is typographical error in Clause 4.1(2)(a) – Operating Hours and an ambiguity in footnote 92 referring to Clause 5.1 – Public Holidays. There is no employee organisation covered by the agreement.
Error or Defect and Amendment
The Employer has asked that Clause 4.1(2)(a) be replaced with the below to correct a typographical error that has resulted in the starting and ceasing time ranges being in the wrong order. The clause as it appeared in the Agreement at the time of approval is:
“(a) the ordinary rate of pay for those employees whose stating time for the week is between midnight and 4:00 a.m. or whose ceasing time for the week is between 8:00 p.m. and midnight will be increased by the out-of-hours loading; and”…
The Employer asks that the clause be corrected to read as follows:
“(a) the ordinary rate of pay for those employees whose starting time for the week is between 8:00 p.m. and midnight or whose ceasing time for the week is between midnight and 4:00 a.m. will be increased by the out-of-hours loading; and”…
The Employer has submitted that footnote 92 in Clause 5.1 should also be replaced to remove ambiguity that could result in an employee being paid less than a total of 250% of the ordinary rate of pay when working on a public holiday if the public holiday falls on a day they do not usually work:
“That is, such an employee working on a public holiday, excluding Good Friday or Christmas Day, receives a total of 250% of the ordinary rate of pay for any time worked. Where such an employee works on a public holiday that falls on other than an ordinary working day for that employee, the employee receives the 250% penalty rate of pay. Example – a full-timer whose normal hours do not include Saturdays receives the 250% penalty rate of pay for work performed on Easter Saturday in those States or territories where Easter Saturday is a public holiday.”
The Employer has filed an amended copy of the Agreement with the corrected clauses to amend the typographical error and footnote 92.
Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evidence purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.
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.
I am satisfied that the errors listed in [2] above are obvious 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 representative of the Employer covered by the Agreement (per s.218A(2)(b)(i)). The variation will operate from the date the Agreement commenced, being 5 March 2024.
The consolidated version of the Agreement, as varied, is attached to this decision.[1] An order giving effect to this decision will be separately issued.[2]
DEPUTY PRESIDENT
[1] AE523669-2.
[2] PR774941.
Printed by authority of the Commonwealth Government Printer
< AE523669 PR774940>
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