Lochard Energy (Iona Gas Storage) Pty Ltd T/A Lochard Energy

[2022] FWC 3298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Lochard Energy (Iona Gas Storage) Pty Ltd T/A Lochard Energy

(ADM2022/4)

Lochard Energy (Iona Operations) Enterprise Agreement 2019

Oil and gas industry
COMMISSIONER LEE	MELBOURNE, 15 DECEMBER 2022

Application for a correction to a decision pursuant to s.602

Lochard Energy (Iona Gas Storage) Pty Ltd T/A Lochard Energy (the Applicant) has made an application under s.602 of the Fair Work Act 2009 (FW Act) for the Commission to correct an obvious error in a decision issued on 17 January 2020 in [2020] FWCA 257 (the Decision). The decision is in relation to the approval of the Lochard Energy (Iona Operations) Enterprise Agreement 2019 (the Agreement).

The Applicant seeks that “the Fair Work Commission (FWC) issue an order to correct the nominal expiry date of the Agreement as listed in paragraph six (6) of the Decision as this is an obvious error / defect in accordance with Section 602 (1) the Act. The nominal expiry date stated in paragraph six (6) of the Decision should align with clause 2.1 of the Agreement (that is, 30 September 2023)”.

On 25 November 2022 I sought the views of the Australian Workers’ Union as they were a bargaining representative for the Agreement. If the Australian Workers’ Union had any views they wished to raise, they were to inform my Chambers by close of business Thursday, 1 December 2022. No views were raised.

Consideration

Section 602 of the FW Act states as follows:

“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.”

The Decision states the nominal expiry date of the Agreement is 1 April 2023. Clause 2.1 of the Agreement provides the Agreement “will remain in force until its nominal expiry date of 30 September 2023”. It is clear there is an obvious error in the Decision, therefore I consider it appropriate to correct the obvious error in the Decision pursuant to s.602 of the FW Act.

The Decision is corrected such that the nominal expiry date of the Agreement will be 30 September 2023. An order will be issued to this effect.

COMMISSIONER

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CaseChat Overview and Summary

The Fair Work Commission received an application from Lochard Energy (Iona Gas Storage) Pty Ltd T/A Lochard Energy, seeking a correction to a previous decision regarding the approval of the Lochard Energy (Iona Operations) Enterprise Agreement 2019. The applicant identified an error in the nominal expiry date of the agreement, which was listed incorrectly in the Decision as 1 April 2023, whereas the agreement itself specifies a nominal expiry date of 30 September 2023. The Commission was asked to correct this error under section 602 of the Fair Work Act 2009.

The legal issue at hand was whether the Commission had the authority to correct the error in the Decision as per section 602 of the Fair Work Act. The applicant argued that the error was an obvious defect that should be corrected to align with the actual terms of the agreement. The Commission considered the provision of the Act and noted that it empowered the Commission to correct obvious errors in its decisions, whether on its own initiative or on application. The Commission also sought the views of the Australian Workers’ Union, which did not raise any objections to the correction.

The Commissioner found that there was indeed an obvious error in the Decision, and it was appropriate to correct this error under section 602 of the Fair Work Act. The Commissioner decided to correct the nominal expiry date of the Agreement to 30 September 2023, as specified in clause 2.1 of the agreement. An order was issued to reflect this correction. The Commissioner was satisfied that the correction was necessary to ensure the Decision accurately reflected the terms of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established