DECISION

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

Spotless Facility Services Pty Ltd
(ADM2018/5)

Hospitality industry
COMMISSIONER CAMBRIDGE	MELBOURNE, 7 SEPTEMBER 2018

Application by Spotless Facility Services Pty Ltd.

[1] On 1 June 2018, the Fair Work Commission (the Commission) issued a Decision ([2018] FWCA 3090), (the approval Decision), wherein the Spotless Public Hospitals (Victoria) Enterprise Agreement 2017 (the 2017 Agreement) was approved. The approval Decision identified that the application for approval of the 2017 Agreement had been made by Spotless Facility Services Pty Ltd (Spotless).

[2] The approval Decision noted, inter alia, that the 2017 Agreement as varied by Undertakings, operated from 8 June 2018, and had a nominal expiry date of 30 September 2020. Further, the approval Decision also noted that the 2017 Agreement covered the Health Services Union (HSU).

[3] On 15 June 2018, The Australian Industry Group (AI Group) acting on behalf of Spotless, made an application (the correction application) pursuant to section 602 (2) (b) of the Fair Work Act 2009 (the Act). Section 602 of the Act provides a statutory basis for the Commission to correct obvious errors or defects in relation to Decisions of the Commission. Section 602 is in the following terms:

“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.”

[4] It is also relevant to recognise that section 598 of the Act provides an explanation for what may be recognised as a Decision of the Commission for the purposes of inter alia, section 602. Section 598 of the Act is in the following terms:

“598 Decisions of the FWC

(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).

Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.

(2) If the FWC makes a decision that makes or varies…

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: Spotless Facility Services Pty Ltd [2018] FWC 5517
Case: [2018] FWC 5517
Decision Date: 7 SEPTEMBER 2018

CaseChat Overview and Summary

Spotless Facility Services Pty Ltd applied to the Fair Work Commission (FWC) to correct an error in its recent approval of the Spotless Public Hospitals (Victoria) Enterprise Agreement 2017. The Australian Industry Group, acting on behalf of Spotless, submitted that the approval decision contained a typographical error in clause 17.2 of the agreement, which set the hourly rate for casual employees. The error related to the basis for calculating the hourly rate, which should have been 1/38th instead of 1/35'' as stated in the approved agreement. The FWC held a hearing on the matter and considered the evidence presented by both Spotless and the Health Services Union. The evidence showed that the error occurred during the process of converting a PDF document of the previous agreement into a Word document. As a result, the FWC was satisfied that there was an obvious error in the approved agreement. The Commission decided to grant the application and correct the approval decision by replacing the incorrect figure with the correct one. The FWC issued a correction order to amend the approval decision accordingly.

The main legal issue in this case was whether the FWC had the power to correct an obvious error in its approval decision under section 602 of the Fair Work Act 2009. The applicant argued that the typographical error in the approved agreement was an obvious error that needed to be corrected. The FWC confirmed that it had the power to correct such errors and that the error in this case was obvious and had not influenced the voting of individuals that resulted in the making of the 2017 Agreement. Therefore, the FWC was disposed to grant the application and correct the approval decision.

Orders