s.218A - Variation of enterprise agreements

PHILMAC PTY LTD PRODUCTION, DISTRIBUTION AND MAINTENANCE - SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2025

Application for approval of the Philmac Pty Ltd Production, Distribution and Maintenance - South Australia Enterprise Agreement 2025

[1] Philmac Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Philmac Pty Ltd Production, Distribution and Maintenance - South Australia Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

[2] 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 FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 27 June 2024 and the Agreement was made on 26 February 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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

[4] The Agreement title in the Notice of Employee Representation Rights (NERR) differs from the title of the Agreement to be approved. Pursuant to s.188(5) of the FW Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A) of the FW Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

[5] The Agreement does not contain a flexibility term that meets the requirements of the Act. Employees were asked to vote to approve the agreement on 26 February 2025. Thus, pursuant to s.202(4) and Clause 107 of Schedule 1 of the FW Act, the model flexibility term as prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement.

[6] Pursuant to s.205A(2) of the FW Act, the workplace delegates' rights term prescribed by the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

[7] I observe that the following provision is likely to be inconsistent with the National Employment Standards (the NES):

• Clause 6.2.4: Compassionate Leave

[8] However, noting clause 1.6.2 the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] The United Workers' Union (UWU) and "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), being bargaining representatives for the Agreement, have each given notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) of the FW Act (and based on the declarations provided by the organisations), I note that the Agreement covers these organisations.

[10] The Applicant has also lodged a simultaneous application to vary the Agreement under s.218A of the FW Act to correct an obvious error. The Applicant seeks to vary clause 5.2.4(b) of the Agreement to remove the date of '7 March 2024' from the 'Wage Outcome Table' and replace it with the correct date of '17 February 2025'.

[11] Upon the Application under s.218A being allocated to me, I wrote to the parties to advise that I intended to consider both Applications simultaneously. The parties were provided an opportunity to make further submissions on the s.218A issue, however no party did so. I am satisfied that the Agreement contains an obvious error. It is obvious that the date '7 March 2024', in Clause 5.2.4(b), was a typographical error and that this date was never contemplated by the parties during bargaining, and it was never intended by the parties to be the effective date of the first wage increase. The Employer provided an updated signed copy of the Agreement which corrected this error.

[12] The Commission's discretion to vary the Agreement under s.218A of the FW Act has been enlivened. I am satisfied that the errors outlined, at [10]-[11] of this decision, should be corrected by varying the Agreement Clause 5.2.4(b) of the Agreement, to remove the date of '7 March 2024' from the Wage Outcome Table and replace it with the date of '17 February 2025', as set out in Annexure A of this Decision. There are no grounds of which I am aware that would tend against the exercise of my discretion to vary the Agreement.

[13] I order,[1] pursuant to s.218A of the FW Act, that the Agreement be varied to correct the errors outlined at [10]-[12] of this decision.

[14] The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 30 June 2025. The nominal expiry date of the Agreement is 31 December 2027.

[1] PR785914.

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