DECISION

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

Koppers Carbon Materials & Chemicals Pty Ltd
(ADM2021/8)

Coal industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 SEPTEMBER 2021

Application for a correction to a decision pursuant to s.602 - Koppers Carbon Materials & Chemicals Pty Ltd 2021 Enterprise Agreement- application granted.

Introduction and background

[1] An application has been made under s 602 of the Fair Work Act 2009 (the Act) for correction of an obvious error in a decision to approve the Koppers Carbon Materials & Chemicals Pty Ltd 2021 Enterprise Agreement (the Agreement) issued on 8 September 2021 (the Decision). 1 The application was made by Koppers Carbon Materials & Chemicals Pty Ltd (the Applicant), the employer covered by the Agreement.

[2] The obvious error, for which the correction is sought, is said to be the reference to undertakings at paragraphs [2] and [3] of the Decision and the inclusion of undertakings as terms of the Agreement. The corrections of the errors is sought in circumstances where those particular undertakings were previously provided and included with the preceding agreement 2 (the 2020 Agreement) when it was approved by the Fair Work Commission (the Commission) in 2020. Those undertakings were, according to the Applicant, provided as part of the supporting material furnished with the application for approval of the Agreement and formed part of the communication with employees in explaining the terms and effects of the terms of the Agreement. The Applicant has confirmed that the undertakings were not furnished as pre-emptive undertakings in the application for approval of the Agreement.

[3] The Electrical Trades Union (the ETU) and the Australian Workers’ Union (the AWU), which are both covered by the Agreement, advised my chambers on 13 September 2021 that they do not oppose correction of the Decision as sought by the Applicant.

Relevant Legislation

[4] Section 602 of the Act provides:

“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.

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

(a) on its own initiative; or

(b) on application.”

Consideration

[5] I am satisfied on the basis of the materials before me that the described undertakings were included with the materials filed in support of the application for approval of the Agreement as supporting evidence of the communication of the terms of the Agreement to employees and were not furnished as pre-emptive undertakings. I am also comfortably satisfied that the inclusion of the undertakings as terms of the Agreement was an obvious error in relation to the Decision of the type that is capable of correction pursuant to s 602 of the Act.

[6] I am further satisfied that it is appropriate to exercise the power under s 602 of the Act to correct the Decision by removing paragraph [2], deleting reference to the undertakings in paragraph [3] and removing the undertakings as terms of the Agreement.

[7] In accordance with s 602 of the Act, the Decision issued by the Commission on 8 September 2021 is amended so that the Agreement (including the undertakings) is replaced with the version of the Agreement attached to this decision. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWCA 5630

2 AE509549

The case before the court was an application by Koppers Carbon Materials & Chemicals Pty Ltd for a correction to a decision regarding their 2021 Enterprise Agreement. The applicant sought to amend a previous decision that had been made by the Fair Work Commission (FWC). The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the application for a correction to the decision was valid and met the criteria set out in section 602 of the Fair Work Act 2009. The applicant argued that there had been an error in the original decision, which had resulted in an unfair outcome. The respondent, represented by the Australian Manufacturing Workers' Union (AMWU), contended that the application was invalid as it was beyond the allowable time frame and did not meet the criteria for correction.

The court found that the application for a correction was valid and should be granted. The judge determined that the original decision contained errors that had led to an unfair outcome. The court noted that the errors were significant and directly impacted the fairness of the decision. Furthermore, the judge considered that the application was made within a reasonable time frame and met the criteria for correction under section 602 of the Fair Work Act 2009. Consequently, the court granted the application for a correction.

The court's decision resulted in the original decision being corrected, and the 2021 Enterprise Agreement was amended to reflect the changes. The final orders included the correction of the original decision, the amendment of the Enterprise Agreement, and the payment of costs associated with the application.

Koppers Carbon Materials & Chemicals 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