UOW Pulse Ltd

[2019] FWC 2860

[2019] FWC 2860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

UOW Pulse Ltd
(AG2018/6032)

COMMISSIONER WILSON MELBOURNE, 30 APRIL 2019

Application to correct decision to approve enterprise agreement - bargaining representatives - ‘slip rule’ – application granted.

[1] On 18 April 2019, I published an approval decision ([2019] FWCA 2696) of the Pulse UniActive Enterprise Agreement 2018 (the ‘Agreement’).

[2] Also on 18 April 2019 Ross Clarke, the Applicant’s representative contacted the Commission by telephone and advised that the decision omitted the Applicant’s request for an amendment to the Agreement requested by email on 28 March 2019 as follows:

“…On reviewing the application material we have identified an inadvertent and unintentional error in clause 21.1.1 of the agreement in that the clause uses the term “in addition” to an employee’s rate of pay when describing the penalty rate structure rather than using the word “of”.

An example of the effect of this error is that a level 2 Front Desk permanent employee on $19.96 an hour (Attachment A) would receive $49.90 at 150% (ie $19.96 + (19.96 x 150%)) rather the intended $29.94 (ie $19.96 x 150%).

For this reason we seek the Commission use the power granted to it under section 586(a) of the Fair Work Act to allow an amendment to the agreement (being a document relating to the application before the Commission) to delete the words “in addition” and replace them with the word “of”.

Alternatively, if the Commission is not disposed to use section 586(a), we seek confirmation from the Commission that this error can be addressed by way of an undertaking, the effect of which would be to clarify that the words “in addition” would be deleted and replaced with the word “of”.

In making these submissions we note:

-      That section 21.1.1 of the agreement applies to new employees and does not apply to any of the employees who voted on the proposed agreement;

-      The F17 did not list as a benefit permanent employees being paid in this way; and

-      The penalties set out in Attachment A as apply to casuals match the award structure (as opposed to significantly adding to them).

We look forward to hearing back on these submissions.

The company advises that it is organising a meeting of the employee bargaining representatives for early next week on this matter (ie 21.1.1) as well as to discuss draft undertakings the company is in the process of putting together.

…”

[3] An email was sent to the Applicant and all bargaining representatives confirming the conversation with Mr Ross and proposing rectification of the error as follows:

“Good afternoon parties,

Following on from discussions held with Mr Ross this morning it has been brought to the Commission’s attention that the decision issued earlier this morning inadvertently omitted Mr Ross’s request below (see email chain) for an amendment to clause 21.1.1 of the Agreement dealing with shift penalties.

At present the clause reads as follows:

21 Shift Penalties

21.2 Penalties

21.1.1 A permanent employee will receive the below listed percentages for working at the times specified in addition to the employee’s ordinary hourly rate of pay:

Shift Type	Loading
Monday to Friday 4:30am to 5:00am	150%
Saturday	125%
Shift Type	Loading
Sunday	150%
Public Holidays	250%

(underlining added)

The request from Mr Ross is to remove the wording underlined above ‘in addition’ and replace it with the wording “of”. After discussions held this morning the Commissioner wishes to propose the following amended wording be used to replace the current clause in order to achieve the Applicant’s intended meaning, granted the parties are in agreeance:

21 Shift Penalties

21.2 Penalties

21.1.1 A permanent employee will receive to their ordinary hourly rate of pay the below listed percentages for working at the times specified:

Shift Type	Loading
Monday to Friday 4:30am to 5:00am	150%
Saturday	125%
Shift Type	Loading
Sunday	150%
Public Holidays	250%

(underlining added)

Parties are asked to please review the Commissioner’s proposed wording and advises accordingly whether they agree to it or not. Should parties agree to the wording the Commissioner proposes to withdraw the current decision and issue a revised decision including the amendment.

Alternatively, if parties do not agree with the proposed wordings they are asked to please indicate as such and provide any amended wording sought, if applicable.

[4] Shannan Human Manager, People and Culture for the Applicant provided a response the same day confirming the Applicant supports the proposed wording. No responses were received from any employees covered by the Agreement.

[5] The power of the Fair Work Commission to make corrections to its decisions is found at s.602 of the Fair Work Act 2009 (the Act) as follows:

“(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.”

[6] The power to amend an agreement approval decision was considered in the Full Bench decision 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. 1

[7] In that decision the Full Bench was concerned with circumstances in which a member of the Commission had inadvertently included in an approval decision a notation that the agreement covered an (employee) organisation which had not complied with the requirements of s.183(2) of the Act.

[8] The Full Bench considered that rectification was possible as the approval decision could be amended to excise the reference to the (employee) organisation by the member concerned by way of s.602 of the Act. The relevant discussion by the Full Bench is as follows:

"An alternate means of rectifying error, defects or irregularity

[27] We note that an error of the type we have identified in the decision of Commissioner Blair, in the circumstances in which it arose, might be capable of rectification in a more timely and efficient manner through an application under s.602 of the Act, with lesser cost to the parties to the agreement and organisations seeking to be covered by an agreement.

[28] Section 602 provides:

"(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).

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

(a) on its own initiative; or

(b) on application."

[29] Section 602 is intended to be a statutory analogue of the "slip rule" used by superior courts to correct certain errors in orders. It must be applied with caution and only in circumstances in which the use of the "slip rule" is permissible

“•  where there has been an unintentional omission in an Order or judgement of the Court;

•  where an Order or judgment does not conform with the intention of the Court, and would have been made if the issue had been mentioned during the proceedings;

•  where there are no material differences of opinion between the parties; it is not suitable to apply this rule where it concerns a matter of controversy; and

•  where the error is manifestly clear; where an 'officious bystander would reply when asked if the amendment was appropriate: "Of course"'." 

[30] The need for caution in the use of s.602 of the Act is reinforced by s.603, which excludes from the substantive power of Fair Work Australia to vary or revoke a decision made by it under this Act "a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements)", which includes, in Division 4 of Part 2-4, a decision to approve an enterprise agreement and the matters a decision must note (including the coverage of an employee organisation in s.201(2).

[31] In the circumstances of the agreement approval decision by Commissioner Blair, the inclusion of the s.201 note appears to have reflected a presumption of regularity by the Commissioner as to the meeting of the Service Requirements in Form F22. Where, as in this case, the factual circumstances, as agreed between the parties to the appeal, were that the written notice was not served on the employer before approval of the Agreement, the inclusion of the s.201 note was in error and the decision of Commissioner Blair would not have included the s.201 note if he had been aware of the failure of the AMWU to provide a copy of the Form F22 to RotoMetrics prior to the approval of the Agreement. In our view, that error might have been capable of correction under s.602 of the Act. In this regard, we note that s.602 has been utilised to correct errors in relation to the failure to include a s.201 note in an agreement approval decision when, as has occasionally occurred, a Form F22 has been received within Fair Work Australia shortly before approval but has not made its way to the relevant Member before approval occurs, leading the Member to approve an agreement without including a s.201 note on the basis of the information available to them at the time of publishing a decision approving an agreement.

[32] We would note, however, that given the need to exercise caution in utilising s.602 of the Act to correct an obvious error, it would be necessary for a Member to afford affected persons with an opportunity to be heard in relation to correcting an error via s.602 and, in particular, to address the appropriateness of the use of the "slip rule" in the circumstances of the particular matter, having regard to relevant authority.”

[9] The failure to include the Applicant’s requested amendment to the Agreement represents an irregularity in the Agreement approval process, which may be susceptible to correction by way of the particular powers under s.602 of the Act. The omission was unintentional; the Commission would have dealt with the request in the same manner were it aware of the request prior to issuing its decision; and no party has raised any objection to the amendment.

[10] As such, I am satisfied that my decision issued 18 April 2019 should be amended to include the below amendment to the Agreement:

21 Shift Penalties

21.2 Penalties

21.1.1 A permanent employee will receive to their ordinary hourly rate of pay the below listed percentages for working at the times specified:

Shift Type	Loading
Monday to Friday 4:30am to 5:00am	150%
Saturday	125%
Shift Type	Loading
Sunday	150%
Public Holidays	250%

[11] An order to this effect is issued simultaneously with this decision.

COMMISSIONER

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<PR707411>

 1   [2011] FWAFB 7214.