Vaughan Civil Pty Ltd T/A Vaughan Civil

[2024] FWCA 2499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.602 – Application to correct obvious error(s) ect

Vaughan Civil Pty Ltd T/A Vaughan Civil

(AG2024/1896)

Building, metal and civil construction industries
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 4 JULY 2024

Application for variation Vaughan Civil Pty Ltd to amend the Vaughan Civil Pty Ltd Enterprise Agreement 2023

An application has been made for correction of an enterprise agreement known as the as the Vaughan Civil Pty Ltd Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.602 of the Fair Work Act 2009 (the Act). It has been made by Vaugh Civil Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Agreement was approved by the Fair Work Commission (the Commission) on 15 June 2023 pursuant to s.186 of the Act, with the decision reference [2013] FWCA 1716.

Following approval of the Agreement, the Applicant alerted the Commission to an error in the Agreement. On 30 May 2024, the Applicant advised the Commission that an incorrect version of the enterprise agreement was submitted with the application documentation. The Applicant submits that an error occurred when the Agreement was scanned omitting pages 29 and 30 and that this was an unintentional scanning error. The incorrectly scanned Agreement with pages 29 and 30 being omitted was submitted with its application Therefore, the approved Enterprise Agreement contained an error.

The Applicant relies on the statement of Ms Vaughan’s which provides confirmation that the full, complete version of the Agreement was issued to employees for the access period in advance of Vaughan Civil requesting employees to vote to approve the Agreement pursuant to s.181 of the Act.

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.

I accept on the basis of the materials before me that a complete version of the Agreement was issued to the employees for the access period in advance of the vote to approve the Agreement occurring. The Applicant mistakenly lodged, together with its s.185 application and supporting declaration, the scanned copy of the Agreement that had omitted pages 29 and 30 which formed part of the Agreement voted on by the employees to approve the Agreement.

I have considered the missing pages and I am satisfied that had Vaughn Civil Pty Ltd made its application under s.185 for the approval of the Agreement including pages 29 and 30, I would have approved it; I would have been satisfied that all of the relevant requirements of ss.186 and 187 had been met, including that the agreement was genuinely agreed and that it passed the ‘better off overall’ test.

I am satisfied that it is appropriate to exercise the power under s.602 of the Act to make the correction by inserting pages 29 and 30 into the approved Agreement.

In accordance with s.602 of the Act, the decision issued by the Commission on 15 June 2023, [2023] FWCA 1716, 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

CaseChat Overview and Summary

Vaughan Civil Pty Ltd sought to correct an error in the approved Vaughan Civil Pty Ltd Enterprise Agreement 2023 (the Agreement) under section 602 of the Fair Work Act 2009. The Applicant identified that the approved Agreement omitted pages 29 and 30, which contained important provisions, due to an unintentional scanning error during the application process. The Commission approved the Agreement on 15 June 2023, and the Applicant sought to amend it following the discovery of this error. The Applicant argued that the error did not affect the genuineness of the agreement or the better off overall test, and that the full agreement was provided to employees for the access period.

The legal issue before the Commission was whether it had the authority under section 602 of the Fair Work Act to correct the error in the approved Agreement. The Applicant had to demonstrate that the error was obvious and that it did not impact the validity of the agreement. The Commission needed to consider whether correcting the error would result in a genuinely agreed and approved agreement. The Applicant had to show that the error was not due to any fault on their part and that correcting it would not change the substance of the agreement.

The Commission found that the error was obvious and unintentional, and that the full agreement had been provided to employees prior to the approval vote. The Commission was satisfied that correcting the error by inserting pages 29 and 30 would result in an agreement that met all the relevant requirements under sections 186 and 187 of the Act, including the genuine agreement and better off overall test. The Commission concluded that it was appropriate to exercise its power under section 602 to amend the approved Agreement by inserting the missing pages. The decision issued on 15 June 2023 was amended accordingly.

The Fair Work Commission amended the approved Vaughan Civil Pty Ltd Enterprise Agreement 2023 by inserting pages 29 and 30 to correct the unintentional scanning error. This amendment ensures that the approved Agreement reflects the complete and correct version that was voted on by the employees. The Commission's decision to correct the error under section 602 of the Fair Work Act ensures that the integrity of the agreement process is maintained and that the parties are bound by the correct terms of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established