Buildsafe Australia Pty Ltd T/A Buildsafe Australia

[2024] FWC 720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Buildsafe Australia Pty Ltd T/A Buildsafe Australia

(ADM2024/1)

COMMISSIONER CONNOLLY

MELBOURNE, 21 MARCH 2024

Application for a correction to a decision pursuant to s.602

Buildsafe Australia Pty Ltd T/A Buildsafe Australia (Buildsafe) has made an application under s.602 of the Fair Work Act 2009 (the Act) for the Commission to correct an obvious error in a decision issued on 21 November 2023 in [2023] FWCA 3887 (Decision).[1] The Decision is in relation to the approval of the Buildsafe Enterprise Agreement (Victoria) 2023 (Agreement).

Pursuant to s.602(2)(b) of the Act, Buildsafe seeks that the Commission correct an inadvertent drafting error that occurred during the preparation of Undertakings in relation to the approval of the Agreement by replacing the Undertakings published with the Undertakings contained in Annexure A of this Decision.

On 8 March 2024, I conducted a Mention and sought further submissions from the Applicant in support of this application.

The Applicant has made the following submissions:

· On 5 October 2023, the Applicant lodged an application for the approval of the Agreement.

· On 18 October 2023, the Commission wrote to the Applicant and identified some concerns in relation to the application of the Better Off Overall Test (“BOOT”). These concerns included the maximum daily hours (clause 30.3) prescribed by the Agreement.

· On 31 October 2023, the Applicant wrote to the Commission making submissions and providing Undertakings to address the Commission’s concerns.

· On 17 November 2023, the Commission wrote to the Applicant and raised further concerns in respect of the Agreement’s approval.
· On 17 November 2023, the Applicant provided revised Undertakings to the Commission.

· On 21 November 2023, the Agreement was approved by the Commission.

· The Applicant subsequently identified that, as a result of an inadvertent drafting error, the revised Undertakings provided on 17 November 2023 have erroneously deleted reference to casual employees being able to work up to 10 hours per day at their inclusive hourly rate.

· The intention to allow casual employees (other than those classified as Labourers) to work up to 10 hours per day at their inclusive hourly rate under clause 30.3 was appropriately considered and only due to an inadvertent drafting error when amending the revised undertakings was this reference omitted.

· As a result of this administrative error, there is inconsistency in the application of ordinary hours and overtime for casual employees in the Agreement.
· The Applicant seeks relief in order to ensure the correct application and interpretation of ordinary hours and overtime and have stated the amendment sought will not impact the BOOT.

Consideration

Section 602 of the FW Act states as follows:

“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.”

Order

Based on the submissions outlined above in paragraph [4], it is apparent that the error is readily identifiable, as is the correction needed to make the Agreement accurately reflect what was clearly intended. Therefore, I am satisfied that there is an obvious error in the Decision.

Accordingly, I consider it appropriate to correct the obvious error in the Decision pursuant to s.602 and order that the Decision issued by the Commission on 21 November 2023 in [2023] FWCA 3887 is amended so that the Undertakings (which are taken to be a term of the Agreement) are replaced with the version attached in Annexure A to this Decision.

COMMISSIONER

Annexure A

[1] Application by Buildsafe Australia Pty Ltd - [2023] FWCA 3887.

Printed by authority of the Commonwealth Government Printer

Buildsafe Australia Pty Ltd, trading as Buildsafe Australia, applied to the Fair Work Commission under section 602 of the Fair Work Act 2009 for a correction to a decision that approved their Enterprise Agreement. The application was made to rectify an inadvertent drafting error in the Undertakings attached to the approved Agreement, which inadvertently omitted a provision allowing casual employees to work up to 10 hours per day at their inclusive hourly rate. This error led to an inconsistency in the application of ordinary hours and overtime for casual employees.

The legal issue before the Commission was whether the error in the Decision was an "obvious error" within the meaning of section 602(2)(b) of the Act, allowing for a correction on application. The Applicant argued that the error was clear and could be rectified by replacing the erroneous Undertakings with the correct version, without affecting the application of the Better Off Overall Test (BOOT). The Commission needed to determine if the error met the criteria for correction and whether the proposed amendment was appropriate.

The Commissioner found that the error in the Undertakings was identifiable and that the proposed correction accurately reflected the intended terms of the Agreement. The error did not involve a modern award or national minimum wage order and was not a defect or irregularity in those instruments. The Commissioner was satisfied that the error was obvious and the correction straightforward, thus falling within the scope of section 602(2)(b) of the Act. Therefore, the Commissioner ordered that the Decision issued on 21 November 2023 be amended to replace the Undertakings with the correct version attached in Annexure A.

The final order was that the Decision issued by the Commission on 21 November 2023 in [2023] FWCA 3887 is amended so that the Undertakings are replaced with the version attached in Annexure A to this Decision.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established