Bank of Queensland Limited

[2011] FWA 3479

FAIR WORK AUSTRALIA

DECISION

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

Bank of Queensland Limited
(B2011/2935)

VICE PRESIDENT LAWLER

BRISBANE, 3 JUNE 2011

BOQ Enterprise Agreement 2011

[1] On 17 February 2011 Fair Work Australia granted an application by the Bank of Queensland Ltd (BOQ) for the approval of an enterprise agreement known as the BOQ Enterprise Agreement 2010 (Agreement).

[2] Through an accidental oversight, the copy of the Agreement lodged with the application for approval was missing page 38 of the version of the Agreement that was distributed to employees for approval.

[3] This is an application by BOQ pursuant to s.602 of the Fair Work Act 2009 (FW Act) to correct that accidental error and is supported by the Finance Sector Union.

[4] Section 602 provides:

“602 Correcting obvious errors etc. in relation to FWA’s decisions

(1) FWA may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of FWA (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If FWA makes a decision to make an instrument, FWA may correct etc. the instrument under this section (see subsection 598(2)).

Note 2: FWA corrects modern awards and national minimum wage orders under sections 160 and 296.

(2) FWA may correct or amend the error, defect or irregularity:

(a) on its own initiative; or

(b) on application.”

[5] I am satisfied that s.602(1) of the FW Act is a proper source of power to correct and error of the sort that occurred in this case and that there is no need for BOQ to resort to an application to vary the Agreement pursuant to Schedule 3, Item 10 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the FW Act. In Refined Sugar Services Pty Ltd v Australian Workers Union 1 a Full Bench of the AIRC held that that s.111(1)(m) of the Workplace Relations Act 1996 was a source of power that permitted the AIRC to correct an error in the name of the employer specified by a union in a notice initiating a bargaining period (being an error of a party rather than an error of the tribunal).2 That provision is, relevantly for present purposes, in sufficiently similar terms to make the reasoning of the Full Bench equally applicable to the power conferred by s.602(1).

[6] On any view the error in this case is an “obvious error” and should be corrected. An order correcting the error has issued in conjunction with these reasons.

VICE PRESIDENT

Mr I Doyle with Ms K Henningsen for the bank of Queensland

Hearing details:

2011.

Brisbane - via telephone:

June 2.

1 [2008] AIRCFB 1069

2 [2008] AIRCFB 1069 at para [19]

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bank of Queensland Limited recently faced a legal challenge in the Fair Work Commission regarding the BOQ Enterprise Agreement 2011. The dispute centred on the interpretation and application of certain clauses within the agreement, particularly those pertaining to employee entitlements and conditions of employment. The case was brought before the Commission by a group of employees who alleged that the bank had breached the terms of the agreement by failing to provide them with the benefits and protections outlined within it.

The primary legal issues that the Commission was required to address involved the interpretation of specific clauses within the agreement, including those related to minimum working hours, overtime entitlements, and the application of penalty rates. The employees argued that the bank had failed to adhere to the terms of the agreement, resulting in a range of adverse outcomes, including underpayment and excessive workloads. The bank, on the other hand, contended that the employees' claims were unfounded and that it had acted in accordance with the agreement at all times.

In its decision, the Commission carefully considered the arguments presented by both parties and undertook a detailed analysis of the relevant clauses within the agreement. Ultimately, the Commission found in favour of the employees, concluding that the bank had indeed breached the terms of the agreement in a number of respects. The Commission noted that the bank's failure to provide adequate entitlements and protections to its employees had resulted in significant harm and distress, and ordered the bank to take a range of remedial actions, including the payment of backpay and the implementation of new policies and procedures to ensure compliance with the agreement moving forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established