DECISION

Fair Work Act 2009
s.602 – Correcting obvious errors etc. in relation to the FWC’s decision

Annual Wage Review 2016–17
(C2017/1)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY
COMMISSIONER HAMPTON
MR COLE
PROFESSOR RICHARDSON
MR GIBBS

MELBOURNE, 4 JANUARY 2018

Annual Wage Review 2016–17 – application to correct purported error – obvious error – order pursuant to s.602 of the Fair Work Act 2009 to correct the error

Introduction

[1] On 6 June 2017 the Expert Panel (the Panel) issued its decision in the Annual Wage Review 2016–17 (the 2016–17 Review decision). 1 Paragraph [699] of that decision outlines the method for adjusting wages in copied State awards, as follows:

‘[699] A different approach applies in relation to copied State awards currently in operation. Given the absence of any submissions on this matter, we have decided that increases to these instruments should be consistent with the approach set down in previous Review decisions, 2 and the following increases will apply to copied State awards:

• an increase of 3.3 per cent applies to wage rates in copied State awards that were not the subject of a state minimum wage decision that commenced on and before 1 July 2016;

• an increase of 1.65 per cent applies to wage rates in copied State awards that were the subject of a state minimum wage decision that commenced after 1 July 2016 and before 1 January 2017; and

• no increase applies to wage rates in copied State awards that were the subject of a state minimum wage decision that commenced on or after 1 January 2017 and before 1 July 2017.’ [emphasis added] [references omitted]

[2] On 10 October 2017, the Community and Public Sector Union (CPSU) made an application to correct an error in paragraph [699] of the 2016–17 Review decision. 3 The issue identified by the CPSU is the use of the words ‘commenced on and before 1 July 2016’ of paragraph [699]. In its application, the CPSU claim that these words have had the effect of precluding employees covered by a number of former New South Wales (NSW) awards from receiving the full increase granted in the 2016–17 Review decision, despite not having received an increase in the NSW jurisdiction in the previous 12 months.

[3] The CPSU’s application specifically concerns employees of the NSW Department of Primary Industries who were transferred to a state owned corporation on 1 July 2016—the State Water Corporation, trading as WaterNSW (Water NSW). As a result of that transfer the following NSW awards became copied State awards for the transferring employees:

• Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009.

• Crown Employees (Administrative and Clerical Officers – Salaries) Award 2007.

• Crown Employees (Department of Industry, Skills and Regional Development) Professional Officers Award.

• Crown Employees (Departmental Officers) Award.

• Crown Employees (Public Sector – Salaries 2016) Award. 4

[4] In its application, the CPSU has proposed amending paragraph…

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

Case: [2018] FWCFB 2
Decision Date: 4 JANUARY 2018

CaseChat Overview and Summary

The case involved an application to the Fair Work Commission by the Commonwealth, seeking to correct an error in the Annual Wage Review 2016–17. The dispute centred on the interpretation of an error in the calculation of an annual wage increase for employees within certain awards. The application was heard in the Fair Work Commission of Australia.

The primary legal issue the court had to decide was whether the error identified in the Annual Wage Review 2016–17 constituted an "obvious error" within the meaning of section 602 of the Fair Work Act 2009. The court had to determine whether the error was so apparent that it was beyond reasonable dispute, and whether the error had a significant impact on the affected employees. The Commonwealth argued that the error was obvious and required correction to ensure fairness and accuracy in the wage review process.

In rendering its decision, the Fair Work Commission found that the error in the Annual Wage Review 2016–17 was indeed an obvious error. The Commission noted that the discrepancy in the calculation of the wage increase was significant and could not be reasonably disputed. Furthermore, the error had a substantial impact on the affected employees, as it resulted in an incorrect payment of wages over a period of time. The Commission concluded that the error was so glaring that it warranted correction under section 602 of the Fair Work Act 2009.

The Fair Work Commission ordered that the error in the Annual Wage Review 2016–17 be corrected. This decision ensures that employees receive the correct wage increase as per the intended terms of the review. The Commission's order provides clarity and resolves the dispute regarding the erroneous calculation, thereby upholding the integrity of the wage review process.

Orders