Offshore Marine Services Pty Ltd

[2012] FWA 9550

[2012] FWA 9550

FAIR WORK AUSTRALIA

DECISION

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

Offshore Marine Services Pty Ltd
(B2012/1678)

Maritime industry
VICE PRESIDENT WATSON	SYDNEY, 9 NOVEMBER 2012

Application to correct an obvious error in relation to a decision [[2010] FWAA 10094] of Commissioner Raffaelli on 30 December 2010 in matter number AG2010/20482 - Fair Work Act 2009, s.602.

Introduction

[1] This decision concerns an application by Offshore Marine Services Pty Ltd (Offshore Marine) to correct an obvious error in relation to a decision 1 of Commissioner Raffaelli dated 30 December 2010 approving the Offshore Marine Services Pty Ltd/AIMPE Tugs and Barges Contract - Gorgon Enterprise Agreement 2010 (the Agreement).2

[2] The application is made under s.602 of the Fair Work Act 2009 (the Act) which provides that Fair Work Australia may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of Fair Work Australia. 3

[3] At the hearing of this matter on 16 October 2012, Ms A Cochrane from the Australian Mines and Metals Association represented Offshore Marine.

The error and position of the parties

[4] The Agreement did not express a nominal expiry date. Offshore Marine submits that the Commissioner incorrectly recorded the nominal expiry date of the Agreement at paragraph [4] of his decision by reference to the nominal expiry date recorded in the form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement, which was incorrectly stated as 31 July 2013. Offshore Marine submits that the nominal expiry date of the Agreement contemplated by the parties is 31 July 2014.

[5] Further Offshore Marine submits that the Commissioner had no power to approve the Agreement because there was no nominal expiry date in the Agreement. Offshore Marine submits that had this issue arisen during the approval process, the correction to the omission of a nominal expiry date could have been remedied by way of undertaking pursuant to s.190 of the Act.

[6] The Australian Institute of Marine and Power Engineers (AIMPE) was a bargaining representative for the Agreement. In correspondence dated 15 October 2012, AIMPE agreed with Offshore Marine’s application to correct the error in the Commissioner’s decision.

Conclusion

[7] I am satisfied that there is an error in the Commissioner’s decision and it is appropriate to categorise the error as an obvious error in relation to a Fair Work Australia decision. I am also satisfied that if the matter was identified at the time by the tribunal or the parties, it would have been rectified in an appropriate way, probably by way of giving an undertaking. At the hearing of this matter, Offshore Marine submitted that it was prepared to give an undertaking in order to cure the error. At the time, I considered it prudent in the circumstances that the undertaking that was proposed to be given be communicated to the other bargaining representative for the Agreement.

[8] A written undertaking dated 25 October 2012 expressing both the term and nominal expiry date of the Agreement and proposing that such be included in clause 4 of the Agreement has been provided by Offshore Marine. I am prepared to accept the undertaking and make an order varying the Agreement in accordance with the application.

[9] In accordance with s.190(4) the view of the bargaining representative, the AIMPE, has been sought in relation to the undertaking. Pursuant to s.191 of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is annexed to this decision and to the Agreement.

VICE PRESIDENT WATSON

Appearances:

A Cochrane for Offshore Marine Services Pty Ltd

Hearing details:

2012.

Sydney.

October, 16.

 1   [2010] FWAA 10094.

 2   AE883273.

 3   Other than an error, defect or irregularity in a modern award or national minimum wage order.

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