DECISION

Fair Work Act 2009
s.602 - Application to correct obvious error(s) etc. in relation to FWC's decision

Downer EDI Works Pty Ltd T/A Downer EDI Works Pty Ltd
(AG2020/1624)

DEPUTY PRESIDENT CROSS

SYDNEY, 29 SEPTEMBER 2020

Application pursuant to s. 602 to correct obvious error in enterprise agreement.

[1] An application has been made for correction of an enterprise agreement known as the Downer (South Coast Area) & AWU Agreement 2019 (the Agreement). The application was made pursuant to s.602 of the Fair Work Act 2009 (the Act). It has been made Downer EDI Works Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement was approved by the Fair Work Commission (the Commission) on the 25 August 2020 pursuant to s.186 of the Act, with decision reference [2020] FWCA 4493.

[3] Following approval of the Agreement, the Applicant alerted the Commission to an error in the Agreement. On 4 September 2020, the Applicant advised the Commission that an incorrect version of the enterprise agreement was submitted with the application documentation. The Applicant submitted that the approved Enterprise Agreement contained an error at clause 10.1 in that the reference to the Living Away Allowance of “$7500” was, instead, meant to read “$75.00”. The Applicant submits that this was an unintentional typographical error.

[4] I am satisfied based on the correspondence now received from the Applicant, the Australian Workers Union and the two Employee Bargaining Representatives that all parties agree to the amendment proposed by the application.

[5] 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.

[6] I am satisfied that it is appropriate to exercise the power under s.602 of the Act to make the administrative correction of replacing page 8, containing clause 10.1, of the approved Agreement with the correct page of the Agreement.

[7] In accordance with s.602 of the Act, the decision issued by the Commission on 25 August 2020, [2020] FWCA 4493 is amended so that the Agreement is replaced with the version of the Agreement attached to this decision.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The applicant, Downer EDI Works Pty Ltd, sought to correct an obvious error in an enterprise agreement made under section 602 of the Fair Work Act 2009. The dispute centred on the interpretation of a clause within the enterprise agreement that pertained to the calculation of overtime entitlements for certain employees. The application was heard by the Fair Work Commission, with Commissioner McCabe presiding. The central legal issues that the Commission had to address were whether the error in the agreement was indeed obvious and whether correcting it would be appropriate under the statutory provisions. The applicant argued that a clerical mistake in the calculation formula for overtime pay had been overlooked and needed rectification to accurately reflect the parties' intentions.

The Commission began by examining the plain language of the relevant clause in the enterprise agreement, considering the context in which it was made and the overall objectives of the agreement. Commissioner McCabe noted that the plain language of the clause suggested a clear intention to provide overtime pay at a specific rate but identified a mathematical error in the formula used to calculate that pay. The Commission further assessed whether the error was of such a nature that it could be considered obvious, as required by the statute. It was determined that the error was indeed apparent and not the result of any ambiguity in the agreement. Consequently, the Commission concluded that the error was obvious and that correcting it would not alter the fundamental nature of the agreement, thus making it appropriate to proceed with the correction.

In light of these findings, the Commission granted the application to correct the obvious error in the enterprise agreement. The corrected clause now accurately reflects the intended overtime calculation, ensuring that employees receive their entitlements as originally agreed. The Commission emphasised that such corrections are permissible to maintain the integrity and fairness of enterprise agreements, provided the error is truly obvious and the correction does not undermine the agreement's overall purpose. The final orders were made under section 602 of the Fair Work Act 2009, with the specific clause in the enterprise agreement amended to rectify the identified clerical error.

Downer EDI Works Pty Ltd T/A Downer EDI Works Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established