Samson Maritime Pty Ltd T/A Samson Express Offshore

[2013] FWC 2800

[2013] FWC 2800

FAIR WORK COMMISSION

DECISION

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

Samson Maritime Pty Ltd T/A Samson Express Offshore
(B2012/2002)

Port authorities
COMMISSIONER BOOTH	BRISBANE, 7 MAY 2013

Application for correction of error in decision [2012] FWAA 7539 in matter no. AG2012/1634: s.602 Fair Work Act 2009

Background - the approval decision and subsequent correspondence

[1] Samson Maritime Pty Ltd (“Samson”) sought approval of the Samson Maritime Wharf and Jetty Marine Civil Construction (Queensland) Enterprise Agreement 2012 (“the Agreement”). It did so by lodging with Fair Work Australia a Form F16 dated 9 May 2012. In response to the relevant question in that form as to the employee bargaining representatives (question 5) Samson stated:

“It is not known whether the employees covered by the Agreement are union members. Therefore it is unknown whether any union was a default bargaining representative.

No union advised the employer that it was a bargaining representative for the Agreement.”

[2] During the Fair Work Commission’s (the Commission) consideration of the Agreement, the dispute resolution clause was found not to be consistent with the Fair Work Act 2009 (theAct), and Samson entered into an appropriate undertaking so that the Agreement could be approved in accordance with the Act. This was completed in August 2012.

[3] On 4 September 2012, the Australian Institute of Marine and Power Engineers (the Institute) lodged a Form F18 seeking, under s.183(1), to be covered by the Agreement. My Associate contacted Samson by email on 5 September 2012 advising them of the Institute’s application, attaching a copy of it, and sought their views, noting my pending decision.

[4] By 11 September 2012 no response had been received from Samson about the Institute’s application to be covered. On that day I approved the Agreement, noting that it covered the Institute. 1 I did so on the basis that the Agreement, with the undertaking, met the Act’s requirements and that I had uncontested submissions before me that the Institute was a bargaining representative. The noting is in accordance with s.201(2):

(2) If:

(a) an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and

(b) the FWC approves the agreement;

the FWC must note in its decision to approve the agreement that the agreement covers the organisation.

[5] On 13 September 2012, Mr Halley, Samson’s HR/QA Manager emailed my Associate with a formal response attached to the email. The attachment was a signed letter on Samson Maritime Pty Ltd letterhead, bearing the date 11 September 2012. It read as follows:

I write with respect to your email dated 5^th September 2012 regarding the submission of a Form 18 by the Australian Institute of Marine and Power Engineers (AIMPE).

In the Form 18 AIMPE has indicated that it was a bargaining representative in its answer to Question 3.

Samson Express Offshore (Samson) wish to advise that AIMPE was not a bargaining representative for any employee and did not participate in the bargaining process.

Samson understands that under s.183(1) of the Fair Work Act 2009, for a union to be covered by an enterprise agreement, the union must have been a bargaining representative.

(Samson Express Offshore appears to be a business name used by Samson.)

[6] The next day my Associate advised that the Agreement had already been approved, attaching a copy of the decision, and noting that the application was now concluded.

[7] On 20 September 2012, Samson advised my Associate that:

“When SEO sent out notices of representational rights all of the nominations returned in favour of nominating themselves not a union. If the employees were in the union they have elected to revoke their right.”

[8] Also in that email Mr Halley enquired about the submission of the notices of representational rights. These were ultimately provided as part of this application.

Application for Correction of Order

[9] In this Application Samson has applied for “correction of the order made by Commissioner Booth in her approval decision dated 11 September 2012 … that … [the Agreement] covers the Australian Institute of Marine and Power Engineers”.

[10] It does so arguing that the Institute was not a bargaining representative because the employees covered by the Agreement had all appointed themselves to be their own bargaining representatives.

[11] Further, Samson submits that the Form F16 lodged with the Commission was an early and incorrect version of the form that did not include the employee bargaining representative information.

[12] Samson asserts the decision includes an “obvious error” in noting that the Institute was covered, as it cannot be covered unless it was the bargaining representative for at least one employee.

Is the alleged error capable of rectification under section 602 of the Act?

[13] The first issue to be decided is whether s.602 is an appropriate means of rectifying an alleged error, defect or irregularity.

[14] Samson draws to the Commission’s attention the Full Bench decision in 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 2 (RotoMetrics). In that decision the Full Bench found that s.602 of the Act was an efficient way to rectify certain errors. In RotoMetrics, the Full Bench considered the Commission could have rectified an error which incorrectly included a note in and the approval of an enterprise agreement decision which indicated the enterprise agreement covered the union.

[15] Similarly on the facts in this matter I have to decide whether there was an error in my decision to include a note that the Agreement covers the Institute.

[16] The Full Bench did note that there was a need for caution when using s.602. In particular it would be necessary for a member to afford the affected persons with an opportunity to be heard in relation to correcting the error. Both Samson and the Institute were afforded the opportunity to be heard.

[17] Samson made submissions on its application for correction of the decision dated 10 January 2013 and further submissions on 12 February 2013. The Institute made a submission in response (28 February 2013), and Samson made submissions in reply dated 7 March 2013.

[18] The Institute acknowledged that s.602 is available to the Commission to alter obvious errors.

[19] Following RotoMetrics I have concluded I can decide whether there was an error, and if necessary correct the error pursuant to s.602 of the Act.

[20] The Institute submitted that while the Commission had the power to correct an obvious error, no obvious error had been made on the part of the Commission in approving the Agreement. In the Institute’s submissions the obvious error was in the supply of the Form F16 by Samson.

[21] Samson’s admitted that it did make an error in lodging an incorrect version of Form F16:

“The coverage of the [Institute] under the Agreement is an irregularity which has occurred as a result of the Applicant’s error.” 3

[22] Mr Halley made a statutory declaration, attached to the application, to which he exhibited what was said to be the version of the form intended to be lodged. The revised form includes the same response to question 5 as above, but includes in response to question 4, referring to the Employer’s bargaining representative, the contact details of five individuals. Mr Halley in his statutory declaration acknowledges that the revised form is also, therefore, incorrect, at least in its layout. He asserts that the names are those of employees. They should therefore have been listed in response to question 5, and presumably the statements under that question should have been omitted.

[23] Samson was represented by one of the industry representative bodies in its original application. The relevant form (and the revised version) was not accurately completed, and the response to the Commission’s invitation to make submissions as to the Institute’s application was not timely. The inaccuracies and lack of timeliness were unfortunate, and as Samson itself appears to admit, led the Commission to understand that the Institute’s assertion that it was a bargaining representative was uncontested.

[24] As a result of these factors the decision of 11 September 2012 was made based on the facts before the Commission at the time.

Consideration

[25] The question before the Commission is whether that decision was made in error as a result of the omissions in the evidence, and whether it should be corrected under s.602.

[26] That is, whether the dispute is whether the decision as to coverage is an “obvious” error, or an error at all.

[27] Samson’s various submissions claim that all relevant employees elected to represent themselves in bargaining. 4

[28] This is important, because the Institute continues to claim coverage:

“Samson Express Offshore only has a small number of Engineers. These Engineers can at any given day be working on board an Inshore Vessel, an Offshore Vessel, a Tug or a Barge anywhere in Australia. To only ballot five (5) employees is restricting the right of other Engineers/Employees to have a say in their agreement. The Institute does have members who are employed by Samson Maritime Pty Ltd trading as Samson Express Offshore and the Institute is the default bargaining representative for these members even though 5 other employees have nominated themselves as bargaining representatives.” 5

[29] Samson says in response that the application is not about the balloting process. That misses the real question: are there other employees of Samson covered by the Agreement at the time for whom the Institute was the default bargaining representative? Samson asserts that “the employees covered by the Agreement had all appointed themselves under section 176(4) of the FW Act as their bargaining representatives”.

[30] If, as a matter of fact, the Institute has no member for whom it is was a bargaining representative by election or default, then it cannot be covered by the Agreement by force of ss.176(1)(b) and 183(1).

[31] In considering Samson’s application, I have also considered their Form F17 dated 10 May 2012 that accompanied the Agreement approval application. This form was not cited to me by either party in this application. However, it clearly states at clause 2.9 that there are 5 employees covered by the Agreement.

[32] Further, the Company’s later material included all five notices of representational rights. This established that all five employees elected to represent themselves, and that one explicitly retracted any representation by the Institute.

[33] It is therefore now clear that the Institute did not, at the relevant time, represent any of the employees covered by the Agreement who number only five.

[34] Accordingly s.176(1)(b) is not satisfied, and as a result, there was an error in my decision of 11 September 2012. That error is amenable to correction under s.602.

[35] An order will issue accordingly omitting paragraph 4 of my original decision.

COMMISSIONER

 1   [2012] FWAA 7539

 2   [2011] FWAFB 7214

 3   Samson’s further submissions dated 12 February 2013 at paragraph 26.

 4   Submissions dated 10 January 2013 at paragraph 3; Further Submissions dated 12 February 2013 at paragraph 3; Submissions in Reply dated 7 March at paragraph 4.

 5   Institute Submissions dated 28 February 2013 at paragraph 17.

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