Application for Approval of the CBH Kwinana Grain Terminal Plant Operators and Maintenance Union Collective Agreement 2025 - s 185 - Agreement Approved - s 218A - Variation Approved.

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Co-Operative Bulk Handling Limited Trading AS Cbh Group

CBH KWINANA GRAIN TERMINAL PLANT OPERATORS AND MAINTENANCE UNION COLLECTIVE AGREEMENT 2025

Application for Approval of the CBH Kwinana Grain Terminal Plant Operators and Maintenance Union Collective Agreement 2025 - s 185 - Agreement Approved - s 218A - Variation Approved.

[1] Co-operative Bulk Handling Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the CBH Kwinana Grain Terminal Plant Operators and Maintenance Union Collective Agreement 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

• (a) Clause 58.2.1 states that day shift hours of work will be a minimum of 42.5 hours per week, comprising 38 hours plus 4.5 additional hours per week. This appears inconsistent with s 62 of the Act which states that the ordinary hours for full time employees is a maximum of 38 hours a week; and

• (b) Clause 38.6 states that if an employee fails to give the required period of notice, or they give notice or are given notice but leave before the end of the required notice period, the Employer may withhold an amount equal to the period not worked from the Employee's final termination payment and that the Employer will require the Employee to sign a form authorising this arrangement. The source from which monies may be deducted has not been specified and may result in deductions being made from accrued NES entitlements inconsistent with Part 2-2 Division 2 of the Act.

[4] However, I am satisfied that under clause 5.6 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) - Electrical Division, Western Australian Branch and the Maritime Union of Australia, a Division of the Construction, Forestry and Maritime Employees' Union (together, the organisations), 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), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement.

[6] The Agreement was approved on 16 January 2026 and, in accordance with s 54, will operate from 23 January 2026. The nominal expiry date of the Agreement is 17 May 2028.

[7] Following the application for the approval of the Agreement, the Applicant applied under s 218A to correct or amend obvious errors, defects or irregularities in the Agreement

[8] The Applicant has requested the following variations:

• (a) Clause 2.20 and the signatory page incorrectly named one of the organisations - both references should read "Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) - Electrical, Energy and Services Division - Western Australian Divisional Branch"; and

• (b) Appendix A, 1.4 (Night Shift in Charge Allowance) - 'Per Week' should read 'Per Shift'.

[9] I also brought to the parties' attention to a typographical error in Appendix A, clause 2.2 of the Agreement, which states that, "From the date this Agreement comes into operation until 16 May 2025, employees will receive the following rates of pay". I proposed that the date be amended via s 218A and the parties did not object.

[10] As has been noted in recent decisions of the Commission,[1] 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. Its evident purpose is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

[11] Before an amendment under s 218A can be made, I must be satisfied of the existence of an obvious error, defect or irregularity (whether in substance or form). Upon the finding of such an error, defect or irregularity, the Commission may vary the enterprise agreement. The power to vary should only be exercised to the extent necessary to remove the error, defect or irregularity.

[12] I satisfied that there are obvious errors as outlined in [8] - [9]. Noting that the organisations did not object to the proposed amendments, I am satisfied that it is appropriate to amend the Agreement accordingly.

[13] I order pursuant to s 281A of the Act as follows:

1. The reference to the "Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) - Electrical, Energy and Services Division - Western Australian Divisional Branch" in clause 2.20 and on the signatory page is varied to read, "Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) - Electrical, Energy and Services Division - Western Australian Divisional Branch".

2. The reference to "per week" in Appendix A, 1.4 (Night Shift in Charge Allowance) is varied to read "per shift".

3. The reference to "16 May 2025" in Appendix A, 2.2 of the Agreement (Maintenance Employees) is varied to read "16 May 2028".

[14] This variation will operate from the date the Agreement commences, being 23 January 2026.

[1] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

Printed by authority of the Commonwealth Government Printer