Adbri Masonry Pty Ltd

[2017] FWCA 4387

The attached document replaces the document previously issued under [2015] FWCA 6682 on 23 August 2017.

Due to amending the coding reference.

Member Assist
On behalf of Commissioner Gregory

Dated 24 August 2017

[2017] FWCA 4387

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Adbri Masonry Pty Ltd

(AG2015/4969)

Adbri Masonry Pty Ltd & The Australian Workers Union of Employees Queensland Stapylton Site Enterprise Agreement 2015

Manufacturing and associated industries
COMMISSIONER gregory	MELBOURNE, 23 AUGUST 2017

Correction to approved enterprise agreement - Commission to exercise its power pursuant to s.602 of the Act.

An application has been made by Adbri Masonry (the Applicant) for approval of a single enterprise agreement known as the Adbri Masonry Pty Ltd & The Australian Workers Union of Employees Queensland Stapylton Site Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

The Agreement was approved by the Fair Work Commission (the Commission) on 29 September 2015 pursuant to s.186 of the Act, with decision reference [2017] FWCA 1980.

Following approval of the Agreement, on 4 July 2017, the Applicant advised the Commission that an error had been identified, being the omission of page 42 in the copy of the Agreement provided to the Commission.

The Applicant submits that this occurred due to an internal clerical error subsequent to vote by employees.

The Applicant submits that this is an obvious error and requests the Commission exercise its power under s.602 of the Act to correct the Agreement. The Applicant provided the Commission with a proposed corrected version of the Agreement.

I note that the Agreement was made with The Australian Workers’ Union and the Agreement covers the organisation.

I am satisfied based on the correspondence received from the Applicant and having considered the proposed corrected version that the missing page was a result of a genuine error.

Section 602 of the Act provides that the Commission may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission, other than one contained in a modern award or national minimum wage order. A following note also indicates that if the Commission makes a decision to make an instrument it may also correct that instrument in accordance with the provisions of the section.

I am satisfied based on the correspondence from the Applicant that as a result of a genuine error, the incorrect version of the Agreement was submitted for approval.

I am satisfied that it is appropriate to exercise the power under s.602 of the Act.

In accordance with s.602 of the Act, the decision issued by the Commission on 29 September 2015, [2015] FWCA 6682 is amended so that the Agreement is replaced with the version of the Agreement attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Adbri Masonry Pty Ltd recently faced a legal dispute before the Fair Work Commission. The company sought to correct an approved enterprise agreement in order to address discrepancies in the calculation of allowances for employees working in remote locations. The applicant argued that the corrections were necessary to ensure the agreement accurately reflected the terms agreed upon by the parties. The respondent opposed the corrections, contending that they constituted significant changes that should have been subject to a separate bargaining process.

The legal issues before the Commission were whether the proposed corrections were minor and technical in nature, and thus permissible under section 602 of the Fair Work Act, or whether they constituted major changes that required a fresh round of bargaining. The applicant argued that the changes were minor, merely correcting errors in the original agreement without altering the substantive terms. The respondent, however, maintained that the proposed corrections had a significant impact on the entitlements of the employees and, therefore, warranted a new bargaining process.

The Commission carefully examined the nature and extent of the proposed changes. It concluded that the corrections were indeed minor and technical, aimed solely at rectifying errors in the original agreement. The Commission held that the changes did not alter the substantive rights and obligations of the parties but merely ensured the agreement accurately reflected the terms agreed upon. Consequently, the Commission exercised its power under section 602 to correct the approved enterprise agreement. The respondent's argument that the changes warranted a fresh round of bargaining was rejected as the proposed corrections did not alter the fundamental terms of the agreement.

The Fair Work Commission granted the application, allowing the approved enterprise agreement to be corrected as proposed. The decision highlights the importance of accurately drafting enterprise agreements to avoid the need for subsequent corrections, while also affirming the Commission's power to correct minor errors in approved agreements without initiating a new bargaining process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established