Lite n’ Easy (NSW) Pty Ltd T/A Lite n’ Easy

[2019] FWC 2542

[2019] FWC 2542

FAIR WORK COMMISSION

FURTHER DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lite n’ Easy (NSW) Pty Ltd T/A Lite n’ Easy
(AG2018/5442)

LITE N’ EASY (NSW) PTY LTD ENTERPRISE AGREEMENT 2018

Food, beverages and tobacco manufacturing industry

COMMISSIONER GREGORY

MELBOURNE, 12 APRIL 2019

Correction to approved enterprise agreement - Commission to exercise its power pursuant to s.602 of the Act - correction to decision [2019] FWCA 153 issued on 11 January 2019 in matter AG2018/5442.

[1] An application was made previously by Lite n’ Easy (NSW) Pty Ltd T/A Lite n’ Easy (the Applicant) for approval of a single-enterprise agreement known as the Lite n’ Easy (NSW) Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Agreement was approved by the Fair Work Commission (the Commission) on 11 January 2019 pursuant to s.186 of the Act, with decision reference [2019] FWCA 153.

[3] Following approval of the Agreement the Applicant advised the Commission that an error had been identified in clause 3.1 of the Agreement, as an incorrect copy of the Agreement was inadvertently lodged with the Commission. The relevant clause states that the Agreement applies to “1 Penelope Crescent, Arndell Park”, which is the Applicant’s former premises. The Applicant provided a correct copy of the Agreement in conjunction with the application with the correct address of “1 Grevillea Street, Eastern Creek” in clause 3.1.

[4] The Applicant submits that the incorrect copy of the Agreement was lodged due to an administrative error. It also submits that this was not the version of the Agreement that was approved by a majority of employees, or provided to employees during the access period.

[5] I note that the National Union of Workers (NUW) was a bargaining representative for the Agreement and the Agreement covers the organisation. The NUW advised the Commission that it has no objection to the change now proposed by the Applicant.

[6] 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. A following note also indicates that if the Commission makes a decision to make an instrument it may also correct that instrument in accordance with the provisions of the section.

[7] Previous decisions of the Commission have also confirmed that the powers available under s.602 are not simply confined to errors made by the Tribunal itself, but can also extend to obvious errors, defects or irregularities made by parties that are subsequently reflected in instruments approved by the Commission.

[8] I am accordingly satisfied that the Commission has the power to amend the Agreement under s.602 in the manner now proposed. I am also satisfied that it is appropriate for the Commission to exercise the discretion available to it in this case on the basis that it will enable an obvious error, made by the Applicant when the application was originally submitted to the Commission for approval, to be corrected. It is also noted that in exercising this discretion it will not in any way impact upon the entitlements applying to the employees covered by the Agreement, or have any impact upon the general operation of the Agreement. It will instead simply mean that it will accurately reflect the location where the employees covered by the Agreement are employed.

[9] I am therefore prepared to make an order amending the Agreement in the terms proposed. The changes are as follows:

•  The reference to “1 Penelope Crescent, Arndell Park” in sub clause 3.1 of the Agreement is deleted and replaced instead by reference to “1 Grevillea Street, Eastern Creek.”

[10] The decision issued by the Commission on 11 January 2019, [2019] FWCA 153 is accordingly amended so that the Agreement attached to that decision is replaced with the version of the Agreement attached to this decision.

[11] An order giving effect to this decision has been issued separately in PR706930.

COMMISSIONER

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<AE501295  PR706929 >