DECISION
[2024] FWCA 3425
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Australian Postal Corporation t/a Australia Post
(AG2024/3287)
AUSTRALIA POST ENTERPRISE AGREEMENT 2024
Postal services
DEPUTY PRESIDENT ROBERTS SYDNEY, 11 OCTOBER 2024
Application for approval of the Australia Post Enterprise Agreement 2024
[1] An application has been made for the approval of an enterprise agreement known as the
Australia Post Enterprise Agreement 2024 (Agreement). The application was made pursuant
to s.185 of the Fair Work Act 2009 (Act). It has been made by Australian Postal Corporation
t/a Australia Post (Applicant). The Agreement is a single enterprise agreement.
[2] The Agreement does not provide for a delegates' rights clause as required by s.205A(1)
of the Act. In accordance with s.201(1A), I note that clause 10A, Workplace delegates' rights,
in the Australia Post Enterprise Award 2015 is to be taken to be a term of the Agreement.
[3] I also note that Clause 2.3.1 of the Agreement addresses any concerns in relation to
potential inconsistencies between the terms of the Agreement, including in relation to clauses
20.5, 20.6 and 21, and National Employment Standards (NES).
[4] The rates of pay and allowances payable under the Agreement are not set out in the
Agreement itself but are contained in the Australia Post Human Resources Manual Rates of Pay
Booklet September 2024 September 2026 (Booklet). A copy of the Booklet was provided to
the Commission. Without the details in the Booklet, it would not have been possible for the
Commission to undertake the better off overall test as required by ss.186(2)(d) and 193. The
rates and allowances in the Booklet are expressly incorporated into the Agreement by virtue of
clause 39.3.3 and therefore form part of the Agreement. In those circumstances, I advised the
parties that my preliminary view was that the Booklet, as well as the Agreement, should be
published with any approval decision. I invited submissions about that proposed course.
[5] The Applicant's primary position was that the Booklet should not be published although
the Applicant ultimately also advised that publication was not objected to if their submissions
on the point were not accepted.
[6] The Applicant referred to the competitive nature of the industry and to various
competitors with agreements that did not expressly publish the rates of pay provided for in their
agreements. The Applicant argued that the present situation was distinguishable from the
circumstances in both AWU v Oji Foodservice Packaging Solutions Pty Ltd1 (Oji) and
Application by VIP Plastic Packaging Pty Ltd2 because this was not a case involving the
redaction of wage rates from an agreement or the non-inclusion/non-incorporation of those
rates, but rather a question about the publication of rates that are expressly incorporated. I accept
that to be the case. I also accept that the Booklet is readily accessible to employees of the
Applicant, both new and existing, and their respective unions.
[7] Section 601(4) of the Act provides as follows:
(4) The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:
(a) a decision that is required to be in writing and any written reasons that the
FWC gives in relation to such a decision;
(b) an enterprise agreement that has been approved by the FWC under Part 2-4.
The FWC must do so as soon as practicable after making the decision or approving the
agreement.
[8] In Oji the Full Bench observed that s.601(4)(b) was directed at the enterprise agreement
'as made' and noted that the agreement is made when it is approved by a vote of employees.3
The Bench went on to point out that if the agreement as made does not include the details of
signatories, the Commission was not compelled by s.601(4)(b) to publish those details although
it may choose to do so.4
[9] The employees were provided with access to the Booklet, amongst other things, before
the start of the voting on the proposed agreement as required by paragraphs 4 and 5 of the Fair
Work (Statement of Principles on Genuine Agreement) Instrument 2023 (Statement of
Principles). The agreement that was made when it was approved by the vote of employees
expressly included the rates and allowances in the Booklet even though those rates were not set
out, in terms, in the agreement itself. In substance if not in form, the contents of the Booklet
formed part of the Agreement as made. Even if I were not required by s.601(4)(b) to publish
the Booklet I think it is appropriate to do so having regard to the centrality of wages and
allowances to the agreement that has been struck and their 'obvious importance' to employees5.
I also consider that publication is consistent with the statutory direction in s.577(1)(c) that the
Commission perform its functions and exercise its powers in a manner that is open and
transparent. I therefore propose to publish the Booklet with this decision.
[10] The Applicant has provided written undertakings (Annexure A). In accordance with
s.190(4) of the Act the views of the bargaining representatives for the agreement were sought
in relation to the undertakings. 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.
[11] Subject to the undertakings referred to above, I am satisfied that each requirement of
ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings
are taken to be a term of the Agreement.
[12] The Community and Public Sector Union - PSU Group, (CPSU), Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia - Communications Division (CEPU), Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied Services Union of Australia Tasmania
Branch (CEPU - TAS), Transport Workers' Union of Australia (TWU) and the Australian
Municipal, Administrative, Clerical and Services Union Victorian Private Sector Branch
(ASU), each lodged a Form F18 statutory declaration giving notice under s.183 of the Act that
it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement
covers the CPSU, CEPU, CEPU TAS, TWU and ASU.
[13]
The Agreement is approved and will operate in accordance with s.54 of the Act. The
nominal expiry date of the Agreement is 9 October 2027.
[9]
An application has also been made by the Applicant to vary the terms of the Agreement
under s.218A of the Act to correct an obvious error, defect or irregularity in the Agreement.
The application seeks to remove the reference to 'the previous twelve months' in clause
15.6.1(b) of the Agreement and replace it with a reference to 'the previous six months.'
[10] The Applicant outlined the history of the negotiations for the provisions now appearing
in clause 15.6.1(b). This included an account of the origin of the provision in question (which
would require the Applicant to consider the hours worked by part-time employees over the
previous six months, rather than the previous 12 months as is the case under the Australia Post
Enterprise Agreement 2021, in any review of the hours of engagement of part-time employees)
- as a claim from the CEPU. The Applicant advised that the claim had been accepted by the
Applicant during negotiations on 2 July 2024 and formally accepted by correspondence on 5
July 2024.
[11] The Applicant also submitted that following agreement between the parties on that term,
the agreed term was, amongst other terms, publicised to employees during the course of
negotiations as being an agreed item. Ultimately, the explanatory materials provided by the
Applicant to the employees to describe the differences between the Agreement and the 2021
Agreement to satisfy the requirements of ss180(5) and 188 of the Act and paragraph 8 of the
Statement of Principles, also included a reference to the agreed change which specified that the
review was to consider hours worked over 'the previous six months.' The Applicant submitted
that it was only shortly after the Agreement had been voted on by employees it was discovered
that the document contained the incorrect reference to 'the previous twelve months.'
[12] The union bargaining representatives either consented to the application for variation,
or did not oppose the application. Having regard to the uncontested account of events by the
Applicant I am satisfied that the Agreement contains an obvious error within the meaning of
s.218A and that I should exercise my discretion in favour of varying the Agreement to correct
that error. As a consequence, clause 15.6.1(b) of the Agreement shall provide as follows:
'(b) factors to be considered in the review process shall be the hours of duty worked
over the previous six months (or since the employee started in the position, whichever
is the lesser period) and known business/operational changes in the next six months;'
[13] The Applicant submitted that the proposed variation should take effect from the date
when the Agreement commences operation under the Act. I agree that the variation should
operate from that date. In accordance with s.218A(3) the variation will operate on and from 18
October 2024. An order giving effect to this decision will be published separately.
DEPUTY PRESIDENT
1 [2018] FWCFB 7501
2 [2023] FWCFB 161.
3 At [65] and [66].
4 At [68].
5 See VIP Plastic op cit, quoting Oji, at [11].
UNDERTAKING
26 September 2024
IN THE FAIR WORK COMMISSION
Applicant: Australian Postal Corporation Australia Post Enterprise Agreement 2024
Section 185 Application for approval of a single enterprise agreement
AG2024/3287
Undertaking provided under section 190 of the Fair Work Act 2009 (Cth)
I, Nicolas Saunders (GM Industrial Relations & Reform), have the authority given to me by the Australian
Postal Corporation (Australia Post) to provide the following undertakings in relation to the application
before the Fair Work Commission.
1. Australia Post undertakes that if it employs anyone that falls within the Postal Worker Grade 1 3
classifications, Australia Post will pay the employee a base rate of pay that is higher than the
minimum rate for their applicable classification under the Australia Post Enterprise Award 2015,
as varied from time to time.
2. Australia Post undertakes that it does not and will not employ anyone in the classifications of
Electronic Mail Operator, Electronic Mail Coordinator, Engineer Class 1 or Senior Stores
Supervisor Grade 3.
Signed by Australia Post
Nicolas Saunders
GM Industrial Relations & Reform
Australian Postal Corporation of Level 3, 219 241
Cleveland Street, Redfern in the State of New South
Wales
26 September 2024
