Cryoperl Australia Pty Ltd - [2016] FWCA 2829

[2016] FWCA 2829

FURTHER DECISION

Fair Work Act 2009

s. 602 – Application to correct or amend

Cryoperl Australia Pty Ltd

(AG2016/2369)

CRYOPERL AUSTRALIA PTY LTD WHEATSTONE PROJECT

AGREEMENT 2016

Building, metal and civil construction industries

COMMISSIONER GREGORY

MELBOURNE, 13 MAY 2016

Application for approval of the Cryoperl Australia Pty Ltd Wheatstone Project Agreement

2016.

[1] This decision deals with an application by Cryoperl Australia Pty Ltd (“Cryoperl”)

under s.602 of the Fair Work Act 2009 (Cth) (“the Act”) seeking amendments to correct

obvious errors and omissions in relation to the Cryoperl Australia Pty Ltd Wheatstone Project

Agreement 2016, which was approved by the Commission with undertakings on 7 March

2016.

[2] The Employer’s Statutory Declaration provided by the Site Manager, Mr James

Keane, at the time the application was made to approve the Agreement indicated that only 4

employees are covered by the proposed Agreement.

[3] As indicated, Cryoperl now makes application under s.602 “seeking to correct or

amend obvious errors, defects or irregularities in the Agreement.”

[4] The errors/omissions arise from the failure to correctly state in the Agreement the rates

of pay and allowances that are intended to apply at the project site under the terms of the

Agreement. Those pay rates and allowances are intended to replicate those contained in the

overall Site Agreement. However, the terms of the Agreement currently fail to make clear that

the commencement rate of pay and allowances are not intended to apply until 1 September

2016, and the increases in those rates, which is now stated in the Agreement to apply from 1

February 2017, are not to apply until 1 September 2017.

[5] Cryoperl accordingly submits the rates of pay and allowances now in the Agreement

do not reflect the intended agreement of the parties and this has been caused by “a simple

administrative error.”

[6] Cryoperl has also provided the Commission with copies of correspondence from each

of the 4 employees covered by the Agreement confirming their understanding that the rates of
[2016] FWCA 2829

pay and allowances in the Agreement were intended to be the same as those applying in the

overall Site Agreement, and confirming their agreement to correct the errors in the Agreement

to confirm that this is, in fact, the case.

[7] Section 602 of the Fair Work Act states:
“602 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.
(1) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
i

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cryoperl Australia Pty Ltd

Details

AGLC: Cryoperl Australia Pty Ltd [2016] FWCA 2829
Case: [2016] FWCA 2829
Decision Date: 13 May 2016

CaseChat Overview and Summary

Cryoperl Australia Pty Ltd applied for an amendment to the Cryoperl Australia Pty Ltd Wheatstone Project Agreement 2016, which had been approved by the Commission on 7 March 2016. The application under section 602 of the Fair Work Act 2009 sought to correct errors and omissions in the agreement, particularly concerning the rates of pay and allowances. The parties intended for the rates to mirror those in the overall Site Agreement, but the approved agreement incorrectly stated the effective dates for certain pay increases. Commissioner Gregory was tasked with deciding whether the Commission had the power to amend the agreement under section 602 and, if so, whether the proposed changes should be approved.

The Commissioner confirmed that section 602 of the Fair Work Act 2009 grants the Commission the authority to correct or amend obvious errors in its decisions, including agreements made under its authority. The power is not limited to errors made by the Commission but can extend to errors made by the parties that are reflected in the approved agreement. Considering the nature of the errors and the supporting evidence from Cryoperl, including correspondence from the affected employees confirming their understanding and agreement to the corrections, the Commissioner was satisfied that the power existed and that the proposed amendments should be approved. The changes detailed wage rates and allowances for various classifications and specific allowances, corrected to accurately reflect the parties' intentions.

The Commissioner approved the application and ordered the amendments to the Cryoperl Australia Pty Ltd Wheatstone Project Agreement 2016 as proposed by Cryoperl. The corrected agreement now accurately reflects the intended rates of pay and allowances, effective from the correct dates, and includes detailed specifications for various classifications and allowances as outlined in the decision. An order to this effect was issued alongside the decision.

Orders