Construction, Forestry, Mining and Energy Union v Lend Lease Project Management and Construction (Australia) Pty Limited

[2012] FWA 5746

[2012] FWA 5746

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.602 - Application to correct obvious error etc.

Construction, Forestry, Mining and Energy Union
v
Lend Lease Project Management and Construction (Australia) Pty Limited
(B2012/827)

COMMISSIONER MACDONALD SYDNEY, 6 JULY 2012

Application for correction to Decision made pursuant to Section 437

[1] On 21 June 2012, I issued a Decision PR525208 arising out of a section 437 application for a Protected Action Ballot Order. 1 The application was made by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the employees of Lend Lease Project Management and Construction (Australia) Pty Limited (“the Employer”) in relation to a proposed enterprise agreement.

[2] The Employer was opposed to the granting of a Protected Action Ballot Order. My Decision rejected the Employer’s submission and FWA issued an Order PR524759 for the Protected Action Ballot.

[3] My Decision also dealt with an issue raised by the parties. That issue went to the form of the ballot process. The CFMEU sought an attendance ballot and the Employer sought a postal vote instead. I decided that the ballot process would be postal.

[4] Subsequent to issuing the Decision, my Chambers received email correspondence from the CFMEU advising of an error in the Decision. That is, I was advised that FWA did not have the power to direct the Australian Electoral Commission as to the voting method to be used. Case law was cited in support of that proposition. 2 I was invited to correct the error, on my own motion, pursuant to section 602 of the Fair Work Act 2009 (“the Act”).

[5] The Employer was represented in the case of first instance by Middletons Lawyers. The CFMEU email was forwarded for response, and that response was the belief that the error identified by the CFMEU was not one that could be rectified by section 602. Support for that view was drawn from the Explanatory Memorandum to the Fair Work Bill 2009 and its explanation that section 602 was to be seen as a “slip rule” facility that allowed correction of certain errors in orders. The error it was submitted, identified by the CFMEU was not one falling within the “slip rule” explanation found within the Explanatory Memorandum.

[6] The CFMEU did not agree with that view. In particular, the CFMEU drew attention to the transcript and pointed out that the CFMEU had, in final submissions, proposed that submissions on the ballot process could be deferred until after I had determined whether or not a ballot would take place. The CFMEU also drew attention to the transcript where the Employer’s representative had agreed to that approach.

[7] I acknowledge the CFMEU submission as to what the parties put on transcript during final submissions. Whilst deliberating on my eventual decision, I overlooked the Employer’s consent to defer submissions on the ballot process. Instead, I relied upon the Employer’s written submissions which advocated a decision from FWA in favour of its position: a postal ballot as opposed to an attendance ballot as sought by the CFMEU. I accepted the written submission of the Employer and decided upon a ballot by postal vote.

[8] Having reviewed the case law submission of the CFMEU that FWA does not have the power to determine the voting process, I concur with that submission.

[9] I convened a teleconference to deal with the foregoing matters. During that teleconference, I was advised that the Australian Electoral Commission had acted upon my Order and a postal ballot was/is taking place. The CFMEU was still of the view that a Correction Order should still be issued.

[10] The Employer’s representative was opposed to that approach because of the practical effect of a Correction Order. That is, if a Correction Order was issued, then the Australian Electoral Commission may cease the current postal vote and begin anew the ballot process.

[11] With the knowledge of both parties, I contacted the relevant officer of the Australian Electoral Commission, being the officer in charge of the current postal ballot process. Following my discussion with that officer, I was satisfied that if I issued a Correction Order, the postal ballot process would not cease.

[12] That information was conveyed to the CFMEU and the Employer’s representative to their mutual satisfaction. Mr S Maxwell, Senior National Industrial Officer for the CFMEU had already given his assurance during the initial teleconference that if I issued a Correction Order, the CFMEU would not then seek a new ballot process.

CONSIDERATION

[13] Section 602 of the Act reads as follows:

“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).

Note 1: If FWA makes a decision to make an instrument, FWA may correct etc. the instrument under this section (see subsection 598(2)).

Note 2: FWA corrects modern awards and national minimum wage orders under sections 160 and 296.

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

(a) on its own initiative; or

(b) on application.”

[14] I set out above my deliberation process and how I came to err in issuing a Decision that said in part that the ballot process proceed and take place by way of a postal ballot.

[15] I have formed the view that that error falls within the type of “error, defect or irregularity” stated in section 602(1) and which quoted terminology was considered by Munro J in Re: Timber & Allied Industrial Award 1999. 3 I advised the parties of that view during the teleconference calls.

[16] Accordingly, I will issue an Order that paragraph 65 of my Decision is deleted, this being the paragraph wherein I set out that the ballot process would be a postal one.

COMMISSIONER

 1 (2012) FWA 5112

 2   CFMEU -v- Freyssinet Australia Pty Ltd[2011] FWA 5829 and CFMEU -v- Grocon Pty Ltd and others[2012] FWA 1716.

 3   PR937647, 11 September 2003

Printed by authority of the Commonwealth Government Printer

<Price code C, PR525999>