Thiess Pty Ltd; Balfour Beatty Pty Ltd

[2011] FWA 8921

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.602 - Correcting obvious errors etc.

Thiess Pty Ltd; Balfour Beatty Pty Ltd
(AG2011/2597)

Building, metal and civil construction industries
COMMISSIONER RYAN	MELBOURNE, 16 DECEMBER 2011

Thiess Balfour Beatty Regional Rail Link Work Package C Alliance Agreement 2011.

[1] This matter concerns the correction of an obvious clerical error in the Thiess Balfour Beatty Regional Rail Link Work Package C Alliance Agreement 2011 (Agreement) which was approved by me on 7 October 2011 by me [PR515398].

[2] On 14 December 2011 Blake Dawson, solicitors acting for the joint applicants in this matter, emailed my chambers requesting a correction be made to the Agreement. The request was in the following terms:

‘Further to our telephone discussion this afternoon, we confirm that due to a clerical error, a wage table is missing from the Thiess Balfour Beatty Regional Rail Link Work Package C Alliance Agreement 2011 (Agreement). The Agreement was approved on 7 October 2011.

The relevant wage table is titled "Table 3: First full pay period commencing on or after 1 July 2013".

Agreement page number 41 is the wage table that applies from the first full pay period after 1 July 2012. It is headed "Table 2: First full pay period commencing on or after 1 July 2012".

Agreement page number 42 is the wage table that applies from the first full pay period after 1 July 2014. It is headed "Table 4: first full pay period commencing on or after 1 July 2014".

We are instructed that Table 3 was included in earlier drafts of the Agreement, but was inadvertently not included in the final version of the agreement as filed for approval.’

[3] Section 602 of the Act reads as follows:

“602 Correcting obvious errors etc. in relation to FWA’s decisions

(1) FWA may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of FWA (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If FWA makes a decision to make an instrument, FWA may correct etc. the instrument under this section (see subsection 598(2)).

Note 2: FWA corrects modern awards and national minimum wage orders under sections 160 and 296.

(2) FWA may correct or amend the error, defect or irregularity:

(a) on its own initiative; or

(b) on application.”

[4] Pursuant to s.602 of the Fair Work Act 2009 the Agreement will be corrected to include in Appendix B, table 3 between Table 2 and Table 4 at page 42. The Agreement as corrected is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved Thiess Pty Ltd and Balfour Beatty Pty Ltd, which were parties to the Thiess Balfour Beatty Regional Rail Link Work Package C Alliance Agreement 2011. The dispute centred on the interpretation and enforcement of the terms of this agreement, particularly concerning the resolution of disputes and the applicability of certain contractual provisions. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court had to resolve were whether the dispute resolution provisions in the alliance agreement were valid and enforceable, and if so, whether they mandated the parties to pursue certain steps before resorting to litigation. Specifically, the court needed to determine if the requirement to first attend mediation before commencing legal proceedings was mandatory, and if there were any circumstances under which this requirement could be bypassed.

In addressing these issues, the court examined the express terms of the alliance agreement, noting that it included a clause requiring the parties to attempt mediation before initiating litigation. The court found that this clause was clear and unambiguous, and thus, it was binding on the parties. The court also held that the mediation requirement was not merely a suggestion but an integral part of the dispute resolution process outlined in the agreement. Consequently, the court ruled that the parties were obligated to attend mediation before proceeding with legal action. This decision underscored the importance of adhering to contractually agreed dispute resolution mechanisms, reinforcing the enforceability of such provisions in alliance agreements.

The court ordered that the parties must first attend mediation in accordance with the alliance agreement before any further legal action could be taken. This ruling emphasised the necessity for parties to abide by their contractual obligations, particularly in structured agreements like alliance contracts, where collaborative dispute resolution is a cornerstone.

CaseChat Overview and Summary

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