Simplot Australia Pty Ltd T/A Simplot Australia

[2019] FWC 1644

[2019] FWC 1644

FAIR WORK COMMISSION

DECISION

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

Simplot Australia Pty Ltd T/A Simplot Australia
(ADM2018/12)

AMWU, CEPU AND SIMPLOT AUSTRALIA PTY LIMITED, EMPLOYEE NATIONAL COLLECTIVE AGREEMENT 2018 - 2021

Food, beverages and tobacco manufacturing industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 15 MARCH 2019

Application by Simplot Australia Pty Ltd to amend Appendix 6: Site Wages and Allowance in the AMWU, CEPU and Simplot Australia Pty Limited, Employee National Collective Agreement 2018 - 2021 – Commission to exercise its power pursuant to section 602 of the Act.

[1] On 31 August 2018 an application was made for the approval of an enterprise agreement known as the AMWU, CEPU and Simplot Australia Pty Limited, Employee National Collective Agreement 2018 - 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Agreement was approved by the Fair Work Commission (the Commission) on 3 December 2018 pursuant to section 186 of the Act, with the decision reference [2018] FWCA 7290.

[3] Following the approval of the Agreement, on 21 December 2018, Simplot Australia Pty Ltd T/A Simplot Australia (the Applicant) lodged an application pursuant to s.602 of the Act advising that an unintentional typographical error had been identified in the Agreement at Appendix 6. Appendix 6 includes inter alia a table outlining the minimum rates of pay for Maintenance and Engineering Employees. The table provides the percentage increases applied each year at 1 July 2018, 1 July 2019 and at 1 July 2020. The rates for each of those years with the percentage increase applied are represented in dollar figures in the respective columns below.

[4] The Applicant submitted that the C8 rate in the table titled ‘Maintenance and Engineering Employees’ Wages’ contained a calculation error. The percentage increase had been applied accurately to each of the rates represented within the table other than the C8 rate, which they submit was an obvious error.

[5] The matter was listed for conference on 5 February 2019. The Applicant along with the Unions who were parties to the Agreement, being the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), filed written submissions and the matter was listed for a conference/hearing on 27 February 2019 during which time I heard oral submissions from the parties.

[6] The Applicant submitted it was the expressed intention of all parties that the increases outlined in the table applied to the last rates within the expired 2014 agreement and all employees had those rates made available to them during both the bargaining period and access period. The Applicant filed a series of documents with their submissions which made reference to the process of calculating the new rates.

[7] The Applicant tendered the witness statement of Mr Bryan Tuit, Plant Manager at Simplot Devonport manufacturing site in Tasmania. 1 There was no objection from either the AMWU or the CEPU and the statement was admitted into evidence without the need for cross-examination.

[8] Mr Tuit’s evidence was that the starting point for the calculation of the new wage rates was the expired 2014 Agreement and this information was contained within the Information Pack given to each employee covered under the scope of the 2018 Agreement. The Information Pack contained a detailed explanation of the wage increases and stated that the first increase would apply to an employee’s ordinary base rate, being the rate contained within the 2014 Agreement. 2

[9] The AMWU submitted that it had been made aware of the error, held discussions with the effected employees who are members and that their members did not dispute the Applicant’s submission that there is an obvious error in the C8 rate as recorded in the Agreement. The AMWU further submitted they have no information that contradicts the Applicant’s submission and therefore did not oppose the correction. The CEPU submitted they support the Applicant’s submission that there is an obvious error in the calculation of the C8 rate and therefore did not oppose the correction.

[10] Section 602 of the Act provides that the Commission may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission, other than one contained in a modern award or national minimum wage order. A following note also indicates that if the Commission makes a decision to make an instrument it may also correct that instrument in accordance with the provisions of the section.

[11] I am satisfied, based on the correspondence received from the Applicant and the Unions, that the version of the Agreement containing incorrect rate for the C8 classification was the result of a genuine error. Accordingly, I am satisfied that it is appropriate to exercise the power under section 602 of the Act to correct the errors in the C8 rate in the ‘Maintenance and Engineering Employee’ Wages’ in Appendix 6 of the Agreement.

[12] In accordance with section 602 of the Act, the decision issued by the Commission on 3 December 2018, [2018] FWCA 7290, is amended so that the Agreement is replaced with the version of the Agreement attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE500910  PR705804>

 1   Exhibit A1

 2   Ibid