Commonwealth of Australia represented by the Department of Employment

[2016] FWC 3736

[2016] FWC 3736

FAIR WORK COMMISSION

FURTHER DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Commonwealth of Australia represented by the Department of Employment
(AG2016/414)

COMMISSIONER LEE MELBOURNE, 9 JUNE 2016

Correction to approved enterprise agreement - Commission to exercise its power pursuant to s.602 of the Act - correction to decision [2016] FWCA 1717 issued on 21 March 2016 in matter AG2016/414.

[1] The Commonwealth of Australia represented by the Department of Employment (the Applicant) made an application for the approval of an enterprise agreement known as the Department of Employment Enterprise Agreement 2016 – 2019 (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 21 March 2016 pursuant to s.186 of the Act, with decision reference [2016] FWCA 1717.

[3] Following approval of the Agreement, on 1 June 2016, the Applicant advised the Commission that the incorrect version of the enterprise agreement was submitted with the application documentation provided to the Commission. The Applicant submitted that the enterprise agreement submitted was not the version provided to employees during the access period and voted on by employees. The Applicant attached a copy of the Agreement lodged with the application documentation with tracked-changes to demonstrate the difference between the Agreement lodged with the Commission and the Agreement provided to employees during the access period and voted on by employees. The Applicant also provided a clean copy of this Agreement.

[4] On 6 June 2016, the Commission sent correspondence to the CPSU, the Community and Public Sector Union being a union bargaining representative for the Agreement and to Alex Marker and Glen Forster, who were named as employee bargaining representatives on the Form F16 - Application for approval of an enterprise agreement. Attached to the correspondence was a copy of the Agreement with tracked-changes and a clean copy of the Agreement provided by the Applicant. The Commission asked that the CPSU and the employee bargaining representatives confirm that the attached Agreement was a copy of the Agreement which was provided to employees during the access period.

[5] On 7 June 2016, Rebecca Fawcett advised on behalf of the CPSU that the attached Agreement was the version of the Agreement that was provided to employees during the access period. Alex Marker, employee bargaining representative also confirmed that the attached Agreement was an accurate copy of the Agreement which was provided to employees for their consideration during the access period.

[6] On 8 June 2016, Jeremy O’Sullivan forwarded correspondence to the Commission on behalf of the Applicant. This correspondence included an email from Glen Forster confirming that he was not a bargaining representative during the access period for the Agreement and that he resigned from his position as employee bargaining representative on 22 December 2015. Notwithstanding this, Glen Forster confirmed that the attached Agreement was a copy of the Agreement provided to all employees during the access period.

[7] I am satisfied based on the correspondence now received from the Applicant, the CPSU and the employee bargaining representatives that the Agreement submitted with the application documentation was not the Agreement provided to employees during the access period and voted on by the employees.

[8] I have reviewed the version of the Agreement which the Applicant seeks to replace against the Agreement that was approved, and I am satisfied that the differences between the two Agreements are not substantial.

[9] Section 602 of the Act provides that the Commission may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission, other than one contained in a modern award or national minimum wage order. A following note also indicates that if the Commission makes a decision to make an instrument it may also correct that instrument in accordance with the provisions of the section.

[10] I am satisfied based on the correspondence from the Applicant that as a result of a genuine error, the incorrect version of the Agreement was submitted for approval.

[11] I am satisfied that it is 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.

[12] In accordance with s.602 of the Act, the decision issued by the Commission on 21 March 2016, [2016] FWCA 1717 is amended so that the Agreement is replaced with the version of the Agreement attached to this decision.

[13] An order giving effect to this decision has been issued separately in PR581399.

COMMISSIONER

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<Price code A, AE418262  PR581398>