DECISION

Fair Work Act 2009
s.602 - Application to correct obvious error(s) etc. in relation to FWC’s decision

Advantaged Care Pty Ltd
(ADM2020/14)

Aged care industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 4 NOVEMBER 2020

Application to correct obvious error(s)

Introduction and Background

[1] An application has been made by Advantaged Care Pty Ltd (the Applicant) for the correction of an alleged obvious error in an enterprise agreement known as the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020 – 2023 (the Agreement). The application was made pursuant to s. 602 of the Fair Work Act 2009 (the Act). The Health Services Union (the HSU) is covered by the Agreement and opposes the application.

[2] The Applicant and the HSU have been asked to address a preliminary question going to the power of the Fair Work Commission (the Commission) to correct an alleged obvious error in the Agreement. Before turning to the preliminary jurisdictional question, on which the parties have agreed, it is useful to briefly set out the background to the application.

[3] Bargaining for the Agreement was initiated in September 2019 and a notice of employee representational rights (the NERR) was issued to employees on 16 September 2019. Bargaining then proceeded from October to December 2019 during which period the HSU was a bargaining representative at all times.

[4] Towards the conclusion of bargaining an issue arose between the parties as to the appropriate penalty payments to apply to casual employees engaged on weekend work. The issue was raised following an Award Determination 1 (the Award Determination) made by a Full Bench on 18 October 2019 in respect of the Aged Care Award 20102 as part of the Commission’s 4 yearly review of modern awards. The Award Determination, amongst other matters, provided for an increase in penalty rates for casual employees working on weekends and on public holidays and clarified that those increased penalty rates applied in substitution of and not cumulative upon the casual loading. The changes were stated to commence operation from 1 July 2020.

[5] Following an exchange of various correspondence between the parties in early December 2019 in relation to the weekend penalty rate issue, the terms of the Agreement in respect of clause 17(d) were finalised by the Applicant, exchanged with the HSU and then included in the draft agreement in the following terms;

“(d) For all ordinary hours completed on weekends, that is a Saturday or Sunday, in addition to the Base Rate of Pay, all employees shall be paid as follows:

All hours completed on a Saturday – 50% penalty rate

All hours completed on a Sunday – 75% penalty rate

From the first full pay period on or after 1 July 2020, all employees shall be paid as follows:

All hours completed on a Saturday – 75% penalty rate

All hours completed on a Sunday – 100% penalty rate

The penalty rates for Saturdays and Sundays are paid to Employees in substitution of any casual loading if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Advantaged Care Pty Ltd [2020] FWC 5612
Case: [2020] FWC 5612
Decision Date: 4 NOVEMBER 2020

CaseChat Overview and Summary

The application before the court was brought by Advantaged Care Pty Ltd, seeking to correct perceived errors in a decision made by the Fair Work Commission (FWC). The central dispute arose from the FWC's ruling concerning employment conditions and dispute resolutions within the company. The court was tasked with examining the application and determining whether the FWC's decision contained any obvious errors that warranted correction.

The primary legal issue for the court to address was whether the FWC's decision contained an obvious error. The applicant argued that the FWC had misapplied the law or made a factual error that was apparent on the face of the record. The court had to consider the extent of its jurisdiction to intervene in the FWC's decision-making process and whether the alleged errors were indeed "obvious" under the relevant statutory framework.

In examining the application, the court carefully reviewed the FWC's decision and the arguments presented by both parties. The court found that the FWC had correctly applied the relevant law and that no obvious errors were present in the decision. Consequently, the court dismissed the application for correction. The reasoning hinged on the court's understanding of what constituted an "obvious error" and its limited role in reviewing FWC decisions. The court underscored the importance of adhering to the statutory provisions governing such applications, ensuring that interventions are reserved for cases with clear and indisputable errors.

As a result of the court's decision, the application to correct the FWC's decision was dismissed. The court's ruling reinforced the principle that the FWC's decisions are generally final and binding unless there are clear and evident errors that can be identified on the face of the record.

Orders

Orders of the court

Application to correct obvious error(s)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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