Cliff and Seale Pty Ltd as the Trustee for the Sea Cliff Family Trust T/A Bakers Delight - Rosebud Plaza

[2015] FWC 5936

[2015] FWC 5936

FAIR WORK COMMISSION

DECISION

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

Cliff and Seale Pty Ltd as the Trustee for the Sea Cliff Family Trust T/A Bakers Delight - Rosebud Plaza
(AG2015/3172)

Retail industry
COMMISSIONER BULL	SYDNEY, 4 SEPTEMBER 2015

Application to amend approved agreement, Commission to exercise its power pursuant to s.602 of the Act , Correction to decision [2015] FWCA 4862 issued on 30 July 2015 in matter number AG2015/3172.

[1] Cliff and Seale Pty Ltd as the Trustee the Sea Cliff family (the applicant) made an application for the approval of an enterprise agreement known as the Cliff and Seale Pty Ltd as the Trustee for the Sea Cliff Family Trust Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single-enterprise agreement.

[2] The Agreement was approved by the Fair Work Commission (the Commission) on 30 July 2015 with undertakings, pursuant to s.186 of the Act, with decision reference [2015] FWCA 4862 (the Decision).

[3] Following approval of the Agreement, on 17 August 2015, the applicant advised the Commission that the version of the Agreement that was approved was not the correct version that was voted on by the employees covered by the Agreement. The applicant states that this was a genuine error made by the applicant, and amendments to an early version of the Agreement were made which was discussed with the employees and subsequently voted upon. However, the earlier version without the amendments was incorrectly submitted to the Commission on application, and subsequently approved.

[4] The applicant now seeks to have the correct version (the one that was voted upon) of the Agreement replace the incorrect version of the Agreement that was approved in the Decision.

[5] The Commission has reviewed the version of the Agreement which the applicant seeks to replace against the Agreement that was approved, and is satisfied that the differences between the two Agreements is not substantial, and together with the undertakings provided by the applicant in the Decision, satisfies the better off overall test under s.186 of the Act, as was considered in the Decision.

[6] There circumstances where the Commission may exercise its broad powers of amendment in relation to an agreement approval application was discussed in the Full Bench decision of CPSU, the Community and Public Sector Union v Water Corporation  1 (CPSU v Water Corporation):

“[22] In terms of s.602 the Water Corporation accepted that the capacity to correct or amend any obvious error, defect or irregularity was not fettered by s.603(3) and that, to this extent the advice of 9 December 2014 was in error….”

[7] Section 602 of the Act states:

“(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).

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

(a) on its own initiative; or

(b) on application.”

[8] In this case, the applicant has made an application for the Commission to exercise its power under s.602 to amend the approval decision to the extent of correcting an error of the applicant, whereby it had submitted the incorrect version of the Agreement.

[9] Relevantly in Australian Federation of Air Pilots v Australian International Pilots Association 2 (AFAP v AIPA), Deputy President Sams examined what factors constitute an obvious error in an application for amendment under s.602 (1). The Deputy President referenced Munro J in Re: Timber & Allied Industrial Award 19993 :

“ ‘The rule is concerned with a discretion, in the exercise of which considerations of fairness and the justice of the amendment are relevant….

Of particular relevance to the matter before the Commission, the slip and error rule enables a correction in the following circumstances:

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] The approach taken in AFAP v AIPA is applicable in the present case. The applicant has submitted that the error was genuine and clerical in nature. The version of the Agreement that the applicant seeks to replace in the Decision is the Agreement which the employees had voted to be approved, thus the granting of the amendment would be consistent with an outcome that was otherwise intended and would be fair in doing so.

[11] The applicant has stated that as a result of genuine error, the incorrect version of the Agreement was submitted for approval, and sought to rely on s.602 of the Act surmising that such a correction is appropriate in the circumstances in that s.182 of the Act requires a majority vote of employees to approve an agreement. The incorrect version of the Agreement which was approved had not been voted on; therefore that version of the Agreement was never made in accordance with the Act.

[12] In Boral Resources (Country) Pty Ltd 4 , an application was made pursuant to s.602 of the Act to amend the version of the Agreement that was filed with the application, and subsequently approved. In that decision, the Commission was satisfied that the Agreement that was lodged for approval was not the final or appropriate version5 and amended the earlier approval decision to insert the correct version of the Agreement.

[13] In view of the submissions, I am satisfied that it would be appropriate to exercise the power under s.602 of the Act to make the administrative correction of replacing the approved Agreement with the correct version of the Agreement.

[14] I have considered the correction sought and the submissions of the applicant. In all of the circumstances, I am prepared to exercise the power under s.602 of the Act to make the administrative correction of replacing the approved Agreement with the correct version of the Agreement.

[15] In accordance with s.602 of the Act, the decision issued by the Commission on 30 July 2015, [2015] FWCA 4862 is amended so that the Agreement is replaced with the attached version of the Agreement. An Order [PR567491] will issue that the attached Agreement will apply to the Decision.

COMMISSIONER

 1   [2015] FWCFB 3270

 2   [2012] FWA 2627 at paragraph 19

 3   [2003] AIRC 1137

 4   [2014] FWC 3519

 5   Ibid at paragraph 2

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