Application by Wyndham City Council
[2016] FWC 1946
•31 March 2016
[2016] FWC 1946
FURTHER DECISION
| Fair Work Act 2009 |
| s.185 - Application for approval of a single-enterprise agreement |
| Wyndham City Council |
| (AG2015/7853) |
WYNDHAM CITY COUNCIL ENTERPRISE AGREEMENT NO7, 2015
Local government administration
| COMMISSIONER BISSETT | MELBOURNE, 31 MARCH 2016 |
Application for approval of the Wyndham City Council Enterprise Agreement No 7, 2015 –
correction to decision.
[1] On 23 December 2015 Wyndham City Council (the Council) made an application
pursuant to s.186 of the Fair Work Act 2009 (the Act) to the Commission for approval of the
Wyndham City Council Enterprise Agreement No 7, 2015 (the Agreement).
[2] On 29 January 2016 I approved the Agreement, noted that the Agreement covered the
Australian Municipal, Administrative, Clerical and Services Union (ASU), the Australian
Nursing and Midwifery Federation (ANMF) and The Association of Professional Engineers,
Scientists and Managers, Australia (APESMA) (collectively the Unions). The Agreement
commenced operation on 5 February 2016 and has a nominal expiry date of 30 June 2019.
[3] Following the issue of the decision approving the Agreement the Commission was
contacted by the ANMF advising that an ‘undertaking’ had not been noted in the approval
decision and seeking that the decision be amended to reflect the ‘undertaking’. This was
supported by the Council.
[4] In response to the matter I called a conference of the parties covered by the Agreement
on 18 March 2016. At that conference I was advised by the Unions and the Council that, prior
to the Agreement being put to a vote of employees Wyndham City Council and the Unions
had further discussions over the content of the Agreement and agreed to further changes to the
Agreement. For reasons that are not clear it was decided to reflect these changes in a
Memorandum of Understanding (MoU) instead of amending the content of the Agreement.
[5] These changes were conveyed to all staff through an email from the CEO on 4 March
2015. At or about the same time the Unions conveyed the content of the Agreement to their
respective members and encouraged employees to support the Agreement as amended by the
MoU.
[6] The formal MoU was executed between 22 and 24 December 2016.
[2016] FWC 1946
[7] It is the submission of all of the parties that the MoU – or the commitments contained
therein – form part of the Agreement that was made by employees when they voted in favour
of the Agreement and now seek that the decision to approve the Agreement be amended to
reflect the actual content of the Agreement made.
Legislative provisions
[8] The power of the Commission to correct an error is found at s.602 of the Act:
602 Correcting obvious errors etc. in relation to the FWC’s decisions
(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in
substance or form) in relation to a decision of the FWC (other than an error, defect or
irregularity in a modern award or national minimum wage order).
Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc.
the instrument under this section (see subsection 598(2)).
Note 2: The FWC corrects modern awards and national minimum wage orders under
sections 160 and 296.
(2) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.
[9] The purpose of the provisions of s.602 was considered by Deputy President Sams in
1
| Australian Federation of Air Pilots v Australian and International Pilots Association | where |
| he said: |
[18] The Explanatory Memorandum to the Fair Work Bill 2009 explained that s.602
was analogous to a court’s ability to apply the ‘slip rule’ in order to correct errors in
decisions or orders of FWA. It was said:
‘In order to avoid unnecessary technicality, clause 602 allows FWA its own
initiative or on application by a person, to correct or amend any obvious error,
defect or irregularity in relation to a decision of FWA (including an instrument
made by FWA). This clause is intended to be a statutory analogue of the 'slip
rule' used by superior courts to correct certain errors in orders (see Re Timber
and Allied Industries Award 1999 [2003] AIRC 1137 at [29]-[30]). This clause
does not apply, however, to a modern award or a national minimum wage
order’.
[19] The reference to the decision of Munro J in Re: Timber & Allied Industrial Award
1999 [2003] AIRC 1137 is referable to His Honour’s conclusions in that decision,
particularly at paras 33-35 as follows:
‘The rule is concerned with a discretion, in the exercise of which
considerations of fairness and the justice of the amendment are relevant.
[2016] FWC 1946Because of the nature of the power, and circumstances in which it will be
exercised, the Correction Order operates from the date of the earlier Order with
retrospective effect, to make the corrected Order operate with full force as
corrected.
Of particular relevance to the matter before the Commission, the slip and error
rule enables a correction in the following circumstances:
where there has been an unintentional omission in an Order or judgement of the Court; where an Order or judgment does not conform with the intention of the Court, and would have been made if the issue had been mentioned during the proceedings; where there are no material differences of opinion between the parties; it is not suitable to apply this rule where it concerns a matter of controversy; and where the error is manifestly clear; where an "officious bystander would reply when asked if the amendment was appropriate: `Of course'".
Similar principles prevail in Commission proceedings. As a matter of course,
caution must be exercised when applying the slip and error rule. However, in
the circumstances of this case the slip and error rule may be brought to bear. It
may reasonably be surmised that the incorrect reference was due to a clerical or
other like error; the omission of Regulation 131A was unintended; the
substitution of Regulation 131A of the Workplace Relations Regulations for
Regulation 131 of the Act gives effect to the intention of the Commission at the
time the Award was simplified; there is no controversy between the parties that
this is what was intended; it is an amendment consistent with an outcome that a
Court might reach through construing the clause’.
[10] To the extent it is necessary and in accordance with R.6 of the Fair Work Commission
Rules 2013 I waive compliance with the rules and accept that an application has been made to
the Commission to correct an obvious error in the decision of the Commission in approving
the Agreement.
Consideration
[11] I am satisfied that the error identified is of the type that may be corrected pursuant to
s.602 of the Act. It should be noted that such a correction will apply from the date of original
decision approving the Agreement.
[12] The error in this case came about because of a lack of clarity by the Council in making
application for approval of the Agreement. The error might also have been avoided if one of
the union bargaining representatives had alerted the Commission clearly to the form of the
Agreement that had been voted on by employees.
[2016] FWC 1946
[13] I am satisfied, on the basis of submissions made by the Council and the Unions in
conference and material provided since the conference that the Agreement voted on by
employees included those matters subsequently formalised in the MoU such that the content
of the MoU forms part of the Agreement.
[14] It is relevant to note that those changes made to the Agreement by the MoU are
substantive in nature. The MoU changes some key provisions of the Agreement which do
affect the rights and responsibilities of all parties.
[15] In deciding to correct the error pursuant to s.602 of the Act I note that all the
bargaining representatives and the Council support the correction being made.
[16] I have considered how best to reflect the changes in the published decision and the
Agreement as it is made available through the Commission’s website.
[17] The MoU is not an undertaking in the sense that an undertaking pursuant to s.190 is
sought and given. Rather it reflects what was before employees when they voted on the
Agreement.
[18] I have therefore decided that the MoU should be appended to the Agreement.
[19] In accordance with s.602 of the Act, the decision issued by the Commission on 29
January 2016, [2016] FWCA 608, is amended so that the Agreement approved by that
decision has the MoU attached. An order PR578477 to reflect this decision will be issued with
this decision.
COMMISSIONER
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| [2012] FWA 2627. |
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