Application by Workzone Traffic Control Pty Ltd - [2022] FWC 3357

[2022] FWC 3357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Application by Workzone Traffic Control Pty Ltd

(AG2022/2405)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 22 DECEMBER 2022

Application to vary an enterprise agreement to remove an ambiguity or uncertainty – concurrent application to correct an error, mistake or irregularity – legislative amendments commencing 7 December 2022 – s 218A – procedure – whether power to amend application – application amended – further directions issued

This decision sets out, with additions where necessary, the reasons for my decision issued at an interlocutory hearing on 21 December 2022.

On 13 July 2022 Workzone Traffic Control Pty Ltd (Workzone) applied under s 217 of the Fair Work Act 2009 (Cth) (FW Act) to vary an enterprise agreement to remove an ambiguity or uncertainty.

The application included, in the alternative, an application to correct an obvious error, mistake or irregularity under s 602 of the FW Act.

In written submissions,[1] and at the hearing of the matter on 9 December 2022, the applicant indicated that it would not be pressing its s 602 application at first instance given the full bench decision in Advantaged Care Pty Ltd v Health Services Union.[2] However, it reserved its position to do so if before “a body not bound by that decision”.

A decision was reserved on 9 December.

On 20 December 2022 solicitors for the applicant wrote to the Commission seeking leave to amend the application to include an application seeking orders under s 218A of the FW Act.

Section 218A was introduced into the FW Act by the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (amending Act). The amending Act received royal assent on 6 December 2022. Section 218A came into operation on 7 December 2022, two days prior to the hearing.

Neither the applicant nor the intervener raised the issue of s 218A during proceedings on 9 December 2022.

The Fair Work Ombudsman (FWO) is an intervener. The FWO intervened late as it did so under powers in the amending Act. The FWO’s intervention was consequent on it assuming certain powers of the former intervener, the Australian Building and Construction Commissioner, with respect to Commission proceedings.

The issue before the Commission in interlocutory proceedings on 21 December 2022 was whether Workzone’s application to amend to incorporate s 218A should be granted.

Consideration

Two issues arise. Does the Commission have power to amend in the terms sought; and (if so) should a discretion be exercised to permit an amendment?

The applicant seeks to amend its application to include an application under s 218A. Its amended application would seek an order varying the agreement under either s 217 or s 218A of the FW Act.

I am satisfied that the Commission has power under s 586(a) of the FW Act to amend the application in the manner sought. The amendment does not fundamentally change the character of the application given that the application already seeks a variation under s 602. The new…

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.

Continue reading Application by Workzone Traffic Control Pty Ltd

Details

AGLC: Application by Workzone Traffic Control Pty Ltd [2022] FWC 3357
Case: [2022] FWC 3357
Decision Date: 22 DECEMBER 2022

CaseChat Overview and Summary

In the case of Application by Workzone Traffic Control Pty Ltd, the applicant sought to vary an enterprise agreement under the Fair Work Act 2009 to remove an ambiguity or uncertainty. The application also included a request to correct an obvious error, mistake or irregularity, which was not pursued further during the proceedings. Following the introduction of a new legislative provision, s 218A, Workzone sought leave to amend its application to incorporate this new provision. The issue before the Fair Work Commission was whether the application could be amended to include s 218A. The Deputy President found that the Commission had the power to amend the application and that it was appropriate to exercise this discretion, given the similarity between s 218A and the previously considered s 602, and the lack of prejudice to the intervener.

The legal issues considered by the Deputy President were whether the Commission had the power to amend the application in the terms sought, and whether the discretion should be exercised to permit an amendment. The Deputy President was satisfied that the Commission had the power to amend the application under s 586(a) of the FW Act, as the amendment did not fundamentally change the character of the application. The new provision, s 218A, included the same substantive language as s 602, which both sought to correct or amend any obvious error, defect or irregularity. The Deputy President found that the same question under s 218A required determination as arises under s 602, and that the statutory cause of action was not fundamentally changed. The discretionary considerations weighed strongly in favour of granting the application to amend.

The Deputy President concluded that it was appropriate to exercise the discretion under s 586(a) of the FW Act to amend the application to include s 218A of the FW Act. The Deputy President issued further directions for the hearing and determination of the matter, requiring the applicant and intervener to file materials relating to s 218A, amongst other matters. The decision on the s 217 elements of the application will remain reserved until the s 218A matter has been fully ventilated.

Orders