Application by Workzone Traffic Control Pty Ltd
[2022] FWC 3357
•22 DECEMBER 2022
| [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 s 218A includes the same substantive language as s 602. Each are applications to “correct or amend any obvious error, defect or irregularity (whether in substance or form)”. Whilst the subject of the sections differs (s 602 is directed at decisions of the Commission or modern awards or minimum wage orders; whereas s 218A is directed at enterprise agreements) the same jurisdictional fact arises; that is, whether an obvious error, defect or irregularity exists.
In this respect, the decision of a full bench of the Commission in Ioannou v Northern Belting[3] is distinguishable. That matter concerned applications raising different statutory causes of action (s 365 and s 394 of the FW Act) that require different questions to be considered and determined.
In contrast, in this matter, the same question under s 218A requires determination as arises under s 602. The statutory cause of action is not “fundamentally changed”.[4] The remedial nature of s 218A is directed (according to the Explanatory Memorandum to the amending Act[5]) at overcoming the obstacle presented by the Advantaged Care decision to applications under s 602.
Discretionary considerations weigh strongly in favour of granting the application to amend. On the face of its application, Workzone sought from the outset, in the alternative, a variation to correct an obvious error, defect or irregularity. It did not press the matter before me in light of the full bench decision in Advantaged Care, but otherwise expressly reserved its rights.
Whilst the amendment giving rise to s 218A was in operation at the time of the hearing and thus could have been drawn to the Commission’s attention and the subject of submissions, it had commenced only two days earlier. In those circumstances, it was understandable that the applicant and the intervener were exclusively focussed on the s 217 elements of the proceedings.
No prejudice to the intervener arises or is asserted.
Whilst the applicant has the right, as an alternative to seeking to amend, to file a new application under s 218A, that is not a basis to refuse the application. Compelling separate proceedings would not be an efficient way for the Commission to conduct its business, as it would likely require a further decision on whether separate applications should be heard concurrently.
I take into account that s 218A empowers the Commission to act of its own motion if the requisite jurisdictional facts are established. In other words, an application by Workzone is not necessary for s 218A powers to be invoked. However, this is not a basis to refuse the application to amend. Whilst, absent an amended application, parties are able to make submissions on whether the Commission should act of its own motion, no advance indication by the Commission as to whether such a course is or would be taken is appropriate. In contrast, an application to vary under s 218A provides certainty that the issue is before the Commission and thereby requires determination.
Conclusion
It is appropriate to exercise discretion under s 586(a) of the FW Act to amend application AG2022/2405 so as to include an application to vary the Workzone Traffic Control Pty Ltd Enterprise Agreement 2009 under s 218A of the FW Act.
I will issue further directions for the hearing and determination of the matter. The further directions will require the applicant and intervener to file materials relating to s 218A, amongst other matters.
Until such time as the s 218A matter has been fully ventilated, a decision on the s 217 elements of the application will remain reserved.
DEPUTY PRESIDENT
Appearances:
Mr T Duggan, of Counsel and with permission, with Ms K Smith, on behalf of Workzone Traffic Control Pty Ltd
Mr M Garozzo, of Counsel and with permission, with Ms A Granger and Ms H Bullock, on behalf of the Fair Work Ombudsman
Hearing details:
2022
Adelaide (by video)
21 December
[1] Submissions 17 August 2022 paragraph 27
[2] [2021] FWCFB 453
[3] [2014] FWCFB 6660
[4] Re Australian Red Cross Society[2020] FWC 2252 at [10]
[5] Revised Explanatory Memorandum to the Fair Work Amendment (Secure Jobs, Better Pay) Bill 2022 at [812] to [816]
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