Heathgate Resources Pty Ltd T/A Heathgate Resources Pty Ltd

[2019] FWC 8166

[2019] FWC 8166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Heathgate Resources Pty Ltd T/A Heathgate Resources Pty Ltd
(AG2019/1333)

COMMISSIONER PLATT ADELAIDE, 4 DECEMBER 2019

Application to correct obvious error – decision on the papers nominated AMWU as being covered by Agreement – no evidence of compliance with s.183(2) of the Act – error found – Agreement decision amended.

[1] On 3 October 2019, Heathgate Resources Pty Ltd T/A Heathgate Resources Pty Ltd (the Applicant) lodged an application under s.602 of the Fair Work Act 2009 (Cth) to correct an error that I made in a Decision 1 to approve the Heathgate Resources Pty Ltd Enterprise Agreement 2018 (the Approval Decision).

[2] The alleged error was the nomination of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Union) as an organisation covered by the Agreement.

[3] The application was opposed by the Union and the matter was listed for hearing on 10 October 2019. The Applicant was represented by Ms Leyla Sandeman from the Australian Mines and Metals Association, the Union was represented by Mr Gabriel Miller. A written outline of submission was provided by each party.

[4] The original application for approval of the Agreement was the subject of a conference on 4 June 2019 to discuss aspects of the Agreement. The Union did not attend that conference. The Applicant provided an undertaking which satisfied the concerns raised. The file contained a Form F18 Statutory Declaration of Employee Organisation in relation to an Application for Approval of an Enterprise Agreement (Form F18) submitted by the Union and, as a result, when the Approval Decision was issued on 17 June 2019, I noted the Union as an organisation covered by the Agreement pursuant to s.201(2) of the Act.

[5] It is now apparent that the Applicant did not have any knowledge of the Form F18 filed by the Union, with the Union acknowledging, by email dated 26 September 2019, that due to an administrative error it did not send the Form F18 to the Applicant.

[6] The Applicant subsequently became aware of the noting of the Union in my Decision and subsequently lodged this application to correct what it has termed an obvious error.

[7] The Union contend that s.602 of the Act is not the appropriate vehicle to correct this issue and that an appeal under s.604 of the Act should be made. I disagree with that approach. It is obvious (particularly in light of the Union’s admission that the Form F18 was not served on the Applicant) that the requirements of s.183(2) of the Act was not met. The Union contended that s.201(2) of the Act only requires compliance with s.183(1) of the Act and thus the failure to meet the service obligations in s.183(2) of the Act is of no consequence. I regret that I do not accept that construction, the application of s.183(1) of the Act is reliant on s.183(2) of the Act. This is a statutory requirement, not merely a procedural matter.

[8] It appears to me that in failing to satisfy myself that the Form F18 was served upon the Applicant (in a similar fashion as I must be satisfied that a protected action ballot order application must be served on the employer and the Australian Electoral Commission) and then nominating the Union as covered by the Agreement, I have fallen into obvious error.

[9] Whilst it may be possible to deal with this matter via s.604 of the Act, in my view it is appropriate to exercise the discretion available to me under s.602 of the Act to correct the error, particularly when considering the obligations of s.577 of the Act. This approach is also consistent with the approach taken in the matter of CPSU, the Community and Public Sector Union v Water Corporation. 2

[10] In order to correct the obvious error, a correction decision will be issued removing the paragraph noting that the Union is covered by the Agreement.

COMMISSIONER

Appearances (by telephone):

Ms L Sandeman on behalf the Applicant.

Mr G Miller on behalf of the Respondent.

Hearing (Conference) details:

2019.

Adelaide:

October 10.

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCA 4134

 2   [2015] FWCFB 3270