Civforce Traffic Management Pty Ltd

[2015] FWCA 4828

[2015] FWCA 4828

FAIR WORK COMMISSION

CORRECTION TO DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Civforce Traffic Management Pty Ltd
(AG2015/3163)

CIVFORCE TRAFFIC MANAGEMENT PTY LTD ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 21 JULY 2015

Application for approval of the Civforce Traffic Management Pty Ltd Enterprise Agreement 2015 - corrected to include clarification of coverage.

[1] The decision issued by the Fair Work Commission on 15 July 2015 [[2015] FWCA 4828, AE414822  PR569476] is corrected as follows:

A. By including a new paragraph 5 as follows (and subsequent renumbering of paragraph 6):

[5] The employer and the AWU have clarified to the Commission that the Agreement will operate only in Queensland and the Northern Territory and/or to works performed by Queensland and Northern Territory based employees.

[2] The correction is required on the basis of the below discussion.

[3] On 15 July 2015 I approved the Civforce Traffic Management Pty Ltd Enterprise Agreement 2015 (“the Agreement”).

[4] Immediately following so doing, the employer (Civforce Traffic Management Pty Ltd), with the support of the Australian Workers’ Union (which is covered by the Agreement), indicated that it sought to clarify the scope of operation of the application clause (clause 2) of the Agreement.

[5] Clause 2 of the Agreement provides as follows:

This agreement will apply to traffic management services provided by Civforce Traffic Management Pty Ltd and to their employees engaged in the classifications defined herein. (sic)

[6] The employer now seeks to clarify that clause 2 of the Agreement will only operate in Queensland and Northern Territory and/or to works performed by Queensland and Northern Territory-based employees.

[7] What is sought by the employer is not an undertaking for the purposes of s.190 of the Fair Work Act 2009 (“the Act”). Rather, the employer seeks to clarify the operation of a clause in order to ensure for future purposes the objective meaning of clause 2 is clearly defined and is not subject to future disputation.

[8] It is evident from the materials filed in support of the application that the employer intended clause 2 of the Agreement to have confined geographical operation. The declaration made by the employer under Form F17 so indicates, as does other facilitating material before the employees who made the Agreement with the employer (which also stipulates that the application clause is a geographically confined as proposed by the employer above).

[9] The power to amend an agreement approval decision was considered in the Full Bench decision RotoMetrics Australia Pty Ltd T/A RotoMetrics v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and others[2011] FWAFB 7214.

[10] In that decision the Full Bench was concerned with circumstances in which a member of the Commission had inadvertently included in an approval decision a notation that the agreement covered an (employee) organisation which had not complied with the requirements of s.183(2) of the Act.

[11] The Full Bench considered that rectification was possible as the approval decision could be amended to excise the reference to the (employee) organisation by the member concerned by way of s.602 of the Act. The relevant discussion by the Full Bench is as follows:

"An alternate means of rectifying error, defects or irregularity

[27] We note that an error of the type we have identified in the decision of Commissioner Blair, in the circumstances in which it arose, might be capable of rectification in a more timely and efficient manner through an application under s.602 of the Act, with lesser cost to the parties to the agreement and organisations seeking to be covered by an agreement.

[28] Section 602 provides:

"(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).

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

(a) on its own initiative; or

(b) on application."

[29] Section 602 is intended to be a statutory analogue of the "slip rule" used by superior courts to correct certain errors in orders. It must be applied with caution and only in circumstances in which the use of the "slip rule" is permissible

• " 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"'." 

[30] The need for caution in the use of s.602 of the Act is reinforced by s.603, which excludes from the substantive power of Fair Work Australia to vary or revoke a decision made by it under this Act "a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements)", which includes, in Division 4 of Part 2-4, a decision to approve an enterprise agreement and the matters a decision must note (including the coverage of an employee organisation in s.201(2).

[31] In the circumstances of the agreement approval decision by Commissioner Blair, the inclusion of the s.201 note appears to have reflected a presumption of regularity by the Commissioner as to the meeting of the Service Requirements in Form F22. Where, as in this case, the factual circumstances, as agreed between the parties to the appeal, were that the written notice was not served on the employer before approval of the Agreement, the inclusion of the s.201 note was in error and the decision of Commissioner Blair would not have included the s.201 note if he had been aware of the failure of the AMWU to provide a copy of the Form F22 to RotoMetrics prior to the approval of the Agreement. In our view, that error might have been capable of correction under s.602 of the Act. In this regard, we note that s.602 has been utilised to correct errors in relation to the failure to include a s.201 note in an agreement approval decision when, as has occasionally occurred, a Form F22 has been received within Fair Work Australia shortly before approval but has not made its way to the relevant Member before approval occurs, leading the Member to approve an agreement without including a s.201 note on the basis of the information available to them at the time of publishing a decision approving an agreement.

[32] We would note, however, that given the need to exercise caution in utilising s.602 of the Act to correct an obvious error, it would be necessary for a Member to afford affected persons with an opportunity to be heard in relation to correcting an error via s.602 and, in particular, to address the appropriateness of the use of the "slip rule" in the circumstances of the particular matter, having regard to relevant authority. “

[12] In my view, but for the late notice by the employer, the Commission would have included in the approval decision the qualifying commentary.

[13] The failure to include such qualifying commentary represents an irregularity in the Agreement approval process, which may be susceptible to correction by way of the particular powers under s.602 of the Act.

[14] The Full Bench referred to above emphasised that the powers under s.602 of the Act are to be used cautiously. It appears to me that the exercise of such powers in this particular instance is warranted. The exercise of the powers to amend the approval decision does not affect the approval of the Agreement or subject the approval to any conditionality. Rather, the exercise of the powers serves only to clarify the intended operation of the application cause. The geographical confinement of the application is in evidence in the material before the employees who made the Agreement with the employer (see paragraph 8 above). The AWU supports the inclusion of the qualification. The Agreement will continue to operate on the terms as originally approved.

[15] In view of this, the approval decision is corrected (as per paragraph 1 of this decision) to give effect to my reasoning above.

SENIOR DEPUTY PRESIDENT

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