Mulgoa Quarries Pty Limited

[2020] FWC 4083

[2020] FWC 4083

FAIR WORK COMMISSION

DECISION

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

Mulgoa Quarries Pty Limited
(AG2019/3985)

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 5 AUGUST 2020

Application for an order correcting an “obvious error” in the Agreement approved in [2020] FWCA 1614

[1] This decision deals with an application by Mulgoa Quarries Pty Limited (the Applicant) made under s.602 of the Fair Work Act 2009 (the Act) to correct an obvious error. The application relates to the Mulgoa Quarries Pty Limited Quarry and Plant Operators Enterprise Agreement 2019-2023 (the Agreement) approved by me on 27 March 2020 in [2020] FWCA 1614. The decision approved the Agreement, following an application made under s.185 of the Act.

[2] The present application seeks a correction to Clause 22.2 of the Agreement as the clause erroneously provides for twenty weeks of annual leave, instead of twenty days.

[3] The Clause of the Agreement presently reads as follows:

“22.2 Employees will accrue twenty (20) weeks of annual leave for each year worked in accordance with the National Employment Standards. Pro-rata accruals for permanent part-time employees will apply.” (emphasis added)

[4] The correction sought would have the Clause be:

“22.2 Employees will accrue twenty (20) days of annual leave for each year worked in accordance with the National Employment Standards. Pro-rata accruals for permanent part-time employees will apply.” (emphasis added)

[5] Following notification of the application my Chambers wrote to parties on two occasions in order to ascertain their views. The Applicant responded by confirming they sought a correction be made pursuant to s.602 and asserted that “the reference to the National Employment Standards (the NES) supports the position that the error is an obvious error as the NES clearly provides for 4 weeks of paid annual leave.” 1 In response to a request from the Commission about the circumstances of the error it also filed and served a statutory declaration of Matthew Wearn, the Applicant’s Business Development Manager. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) did not make submissions on the subject.

[6] The error in Clause 22.2 was notified to the parties by my Chambers during the course of the s.185 application on 8 November 2019. In correspondence dated 14 November 2019, the Applicant sought approval under s.586 of the Act to amend Clause 22.2 to delete “weeks” and insert “days”. When the Agreement was approved on 27 March 2020 a correction under s.586 was not made.

Consideration

[7] 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.” 2

[8] Section 602 is “intended to be a statutory analogue of the ‘slip rule’ used by superior courts to correct certain errors in orders”. 3

[9] It must be applied with caution 4 and only in circumstances in which the use of the “slip rule” is permissible:5

“•  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”’.” 6 

[10] The Commission cannot otherwise vary an enterprise agreement approval decision (s.603(3)(b)), reinforcing the caution with which the power at s.602 is to be exercised. 7

[11] The power to correct an obvious error under s.602 is not confined to an error made by the Commission and may extend to obvious errors made by the parties reflected in instruments the Commission makes. 8 

[12] I am accordingly satisfied that the Commission has the power under s.602 to amend the terms of a decision handed down by a Commission Member in circumstances where the Commission is satisfied that the decision contains an obvious error, defect or irregularity.

[13] Based on the material before me I am satisfied that it is appropriate to correct the obvious error in order that the terms of the Agreement approved by the Commission accurately reflects the original intention of the parties to the Agreement. I therefore intend to make an order amending the Agreement in the terms proposed by the Applicant.

[14] An order to this effect will be issued following this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE507572  PR721537>

 1 Email from Applicant containing s.602 application, 15 July 2020.

 2   Fair Work Act 2009 (Cth).

 3   Explanatory Memorandum to the Fair Work Bill 2008, at paragraph 2316, with reference to Re Timber and Allied Industries Award 1999 [2003] AIRC 1137 at [29]-[30].

 4   Gould v Vaggelas (1985) 157 CLR 271, at [275]; Handa v Minister for Immigration and Multicultural Affairs [2000] FCA 1830 at [17] and Re Timber and Allied Industries Award 1999, PR937647, at [35].

 5   Re Timber and Allied Industries Award 1999, PR937647, at [29]-[35].

 6 Ibid at [34].

 7   Schweppes Australia Pty Ltd v United Voice – Victoria Branch[2012] FWAFB 7858 at [348] and RotoMetrics Australia v AMWU[2011] FWAFB 7214 at [27] -[32].

 8   Schweppes Australia Pty Ltd v United Voice – Victoria Branch[2012] FWAFB 7858 at [348] and L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at [6].