MQ Health Pty Limited T/A Macquarie University Hospital

[2019] FWC 2972

[2019] FWC 2972

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

MQ Health Pty Limited T/A Macquarie University Hospital
(AG2018/6627)

COMMISSIONER WILSON MELBOURNE, 2 MAY 2019

Application to correct decision to approve enterprise agreement - ‘slip rule’ – application granted.

[1] On 8 April 2019, I published an approval decision ([2019] FWCA 2381) of the Macquarie University Hospital and NSWNMA/ANMF Enterprise Agreement 2018 (the ‘Agreement’).

[2] On 30 April 2019 Aisling Hawkes on behalf of the Respondent contacted the Commission by telephone and advised that the Agreement published included formatting issues which make it difficult for employees to read and understand the terms of the Agreement. Ms Hawkes was requested to file a corrected copy of the Agreement for review.

[3] The same day, Ms Hawkes provided a PDF copy of the Agreement for re-publishing which corrected the formatting issues. The email confirmed that:

“I have given it a final proofread and updated the following formatting:

1. Clause 18 - Added bolding to the title "Casual Conversion"

2. Removed the 'track changes' from the following clauses, which occurred as a result of Jennifer's email - clause 30.12, 30.13, 42.3(c). 42.3 (d)

3. Removed yellow highlighting from tables in Schedule C.

Please let me know if this works or if you need anything further.”

[4] The power of the Fair Work Commission to make corrections to its decisions is found at s.602 of the Fair Work Act 2009 (the Act) as follows:

“(1) FWA may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of FWA (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If FWA makes a decision to make an instrument, FWA may correct etc. the instrument under this section (see subsection 598(2)).

Note 2: FWA corrects modern awards and national minimum wage orders under sections 160 and 296.

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

(a) on its own initiative; or

(b) on application.”

[5] The power to amend an agreement approval decision was considered in the Full Bench decision RotoMetrics Australia Pty Ltd T/A RotoMetrics v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and others. 1

[6] In that decision the Full Bench was concerned with circumstances in which a member of the Commission had inadvertently included in an approval decision a notation that the agreement covered an (employee) organisation which had not complied with the requirements of s.183(2) of the Act.

[7] The Full Bench considered that rectification was possible as the approval decision could be amended to excise the reference to the (employee) organisation by the member concerned by way of s.602 of the Act. The relevant discussion by the Full Bench is as follows:

"An alternate means of rectifying error, defects or irregularity

[27] We note that an error of the type we have identified in the decision of Commissioner Blair, in the circumstances in which it arose, might be capable of rectification in a more timely and efficient manner through an application under s.602 of the Act, with lesser cost to the parties to the agreement and organisations seeking to be covered by an agreement.

[28] Section 602 provides:

"(1) FWA may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of FWA (other than an error, defect or irregularity in a modern award or national minimum wage order).

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

(a) on its own initiative; or

(b) on application."

[29] Section 602 is intended to be a statutory analogue of the "slip rule" used by superior courts to correct certain errors in orders. It must be applied with caution and only in circumstances in which the use of the "slip rule" is permissible

“•  where there has been an unintentional omission in an Order or judgement of the Court;

•  where an Order or judgment does not conform with the intention of the Court, and would have been made if the issue had been mentioned during the proceedings;

•  where there are no material differences of opinion between the parties; it is not suitable to apply this rule where it concerns a matter of controversy; and

•  where the error is manifestly clear; where an 'officious bystander would reply when asked if the amendment was appropriate: "Of course"'." 

[30] The need for caution in the use of s.602 of the Act is reinforced by s.603, which excludes from the substantive power of Fair Work Australia to vary or revoke a decision made by it under this Act "a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements)", which includes, in Division 4 of Part 2-4, a decision to approve an enterprise agreement and the matters a decision must note (including the coverage of an employee organisation in s.201(2).

[31] In the circumstances of the agreement approval decision by Commissioner Blair, the inclusion of the s.201 note appears to have reflected a presumption of regularity by the Commissioner as to the meeting of the Service Requirements in Form F22. Where, as in this case, the factual circumstances, as agreed between the parties to the appeal, were that the written notice was not served on the employer before approval of the Agreement, the inclusion of the s.201 note was in error and the decision of Commissioner Blair would not have included the s.201 note if he had been aware of the failure of the AMWU to provide a copy of the Form F22 to RotoMetrics prior to the approval of the Agreement. In our view, that error might have been capable of correction under s.602 of the Act. In this regard, we note that s.602 has been utilised to correct errors in relation to the failure to include a s.201 note in an agreement approval decision when, as has occasionally occurred, a Form F22 has been received within Fair Work Australia shortly before approval but has not made its way to the relevant Member before approval occurs, leading the Member to approve an agreement without including a s.201 note on the basis of the information available to them at the time of publishing a decision approving an agreement.

[32] We would note, however, that given the need to exercise caution in utilising s.602 of the Act to correct an obvious error, it would be necessary for a Member to afford affected persons with an opportunity to be heard in relation to correcting an error via s.602 and, in particular, to address the appropriateness of the use of the "slip rule" in the circumstances of the particular matter, having regard to relevant authority.”

[8] I am satisfied that the failure to remove the formatting issues in the Agreement prior to lodgement was an unintentional omission on the part of the Applicant. Upon review of the Agreement there is no material differences between the content of the Agreement filed in the first instance and the amended Agreement now provided to the Commission. It is manifestly clear to an officious bystander that such an amendment is appropriate in the circumstances.

[9] As such, I am satisfied that my decision issued 8 April 2019 should be amended in accordance with s.602 of the Act to replace the previous Agreement with the amended Agreement.

[10] An order to this effect is issued simultaneously with this decision.

COMMISSIONER

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 1   [2011] FWAFB 7214.