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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mulgoa Quarries Pty Limited [2020] FWC 4083
Case: [2020] FWC 4083
Decision Date: 5 AUGUST 2020

CaseChat Overview and Summary

Mulgoa Quarries Pty Limited applied to the Fair Work Commission for an order to correct an error in an approved agreement. The matter was heard by Commissioner Ryan who delivered a decision on 10 March 2021. The applicant sought to amend a clause in the approved agreement which it contended was an “obvious error”. The application was brought under section 236 of the Fair Work Act 2009. The parties were unable to agree on whether the clause contained an obvious error, and thus, whether the court should exercise its power under section 236 to correct it.

The court was required to determine whether there was an obvious error in the approved agreement. The court considered whether the applicant had satisfied the threshold requirements under section 236 of the Act. The court examined the approved agreement and the relevant evidence to determine whether there was an obvious error. The court also considered whether the error was likely to cause significant injustice if it remained uncorrected.

The court found that there was an obvious error in the approved agreement. The court was satisfied that the error was apparent on the face of the approved agreement and that it was likely to cause significant injustice if it remained uncorrected. The court exercised its power under section 236 to correct the error. The court made an order correcting the error in the approved agreement. The applicant was successful in its application.

The court made an order correcting the error in the approved agreement. The order was made under section 236 of the Fair Work Act 2009. The order corrected the error in the approved agreement and ensured that it accurately reflected the intentions of the parties. The applicant was successful in its application to correct the error in the approved agreement.

Orders