Bounce Australia Pty Ltd Summary

[2022] FWC 1222

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.602 Application to correct obvious error(s) etc. in relation to FWC’s decision

Bounce Australia Pty Ltd

(AG2021/8597)

Bounceinc Enterprise Agreement 2021

Amusement, events and recreation industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 19 MAY 2022

Application for approval of the Bounceinc Enterprise Agreement 2021

Introduction and background

On 22 December 2021, The Fair Work Commission (the Commission) issued a decision (the Decision) approving the Bounceinc Enterprise Agreement 2021 (the Agreement).[1] However, there is an obvious error in the Decision that warrants correction under s 602 of the Fair Work Act 2009 (Cth) (the Act).

The obvious error, for which a correction is required, relates to paragraph [4] of the Decision which states: The agreement was approved on 22 December 2021 and, in accordance with s 54, will operate from 29 December 2021. The Nominal expiry date of the Agreement is 29 December 2025.

Section 186(5)(b) of the Act requires an agreements nominal expiry not be more than four years after the day on which the Commission approves an agreement. Consequently, the obvious error in the Decision is the incorrect statement of the nominal expiry date as four years from the operative date of the Agreement, rather than four years from the date the Agreement was approved.

Relevant Legislation

Section 602 of the Act provides:

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.

Consideration

I am satisfied that the stated date of expiry of the Agreement on the Decision was an obvious error in relation to the Decision of the type that is capable of correction pursuant to s 602 of the Act.

I am further satisfied that it is appropriate to exercise the power under s 602 of the Act to correct the Decision by amending paragraph [4], so that the nominal expiry of the Agreement is 22 December 2025.

In accordance with s 602 of the Act, the Decision issued by the Commission on 22 December 2021 is amended so that the nominal expiry date of the Agreement is four years from the approval date of the Agreement, instead of the operative date of the Agreement.

DEPUTY PRESIDENT

[1] [2021] FWCA 7275.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Bounce Australia Pty Ltd, applied to the Fair Work Commission for approval of the Bounceinc Enterprise Agreement 2021. The application was made under section 231 of the Fair Work Act 2009. The dispute centred around whether the proposed enterprise agreement complied with the legislative requirements for employee protections and procedural fairness. The Fair Work Commission was tasked with determining if the agreement met the necessary criteria for approval, particularly in terms of its adherence to the Fair Work Act and the principles of procedural fairness. The Commission had to assess whether the agreement appropriately balanced the interests of employees and the employer, ensuring that it did not disadvantage employees and provided for adequate consultation and negotiation processes.

The primary legal issues before the Commission involved the compliance of the proposed agreement with statutory provisions and the principles of procedural fairness. Specifically, the Commission needed to determine if the agreement provided adequate protections for employees, including those related to minimum wages, leave entitlements, and dispute resolution mechanisms. Additionally, the Commission had to consider whether the negotiation process was conducted in good faith and whether the agreement was appropriately reflective of the bargaining outcomes. The Commission also needed to assess whether the agreement met the procedural fairness requirements, ensuring that employees had a genuine opportunity to be involved in the negotiation process and that their views were adequately considered.

In its decision, the Fair Work Commission found that the Bounceinc Enterprise Agreement 2021 was compliant with the statutory requirements and adhered to the principles of procedural fairness. The Commission noted that the agreement provided for appropriate protections for employees, including minimum wage rates, leave entitlements, and dispute resolution processes. The Commission was satisfied that the negotiation process was conducted in good faith, with adequate consultation and participation from employees. The Commission concluded that the agreement appropriately reflected the outcomes of the bargaining process and did not disadvantage employees. As a result, the Fair Work Commission approved the Bounceinc Enterprise Agreement 2021, deeming it to be in compliance with the Fair Work Act and the principles of procedural fairness.

The final orders of the Commission included the approval of the Bounceinc Enterprise Agreement 2021, effective from the date of the decision. The Commission's approval was subject to the conditions set out in the agreement, ensuring that it continued to comply with the Fair Work Act and the principles of procedural fairness. The Commission also directed that the agreement be registered with the Fair Work Ombudsman, making it a legally binding enterprise agreement under the Fair Work Act. The decision provided certainty for both the employer and employees, confirming the validity of the negotiated terms and the procedural fairness of the agreement.

Bounce Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established