Victoria International Container Terminal Limited T/A VICT

[2019] FWC 2827

[2019] FWC 2827

FAIR WORK COMMISSION

DECISION

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

Victoria International Container Terminal Limited T/A VICT
(ADM2019/3)

Stevedoring industry
COMMISSIONER GREGORY	MELBOURNE, 26 APRIL 2019

Application for an order varying the decision of Vice President Watson of 19 October 2016 in [2016] FWCA 7585 (PR586672).

[1] This decision deals with an application by Victoria International Container Terminal Limited T/A VICT made under s.602 of the Fair Work Act 2009 (Cth) (“the Act”). It seeks to vary the decision of Vice President Watson handed down on 19 October 2016 in [2016] FWCA 7585. That decision approved the Victoria International Container Terminal Operations Agreement 2016 (“the Agreement”), following an application made under s.186 of the Act. The decision concluded by indicating, “The nominal expiry date of the Agreement is 19 October 2019.” 1 However, the present application asserts that this specification of the intended nominal expiry date of the Agreement was an obvious error, and the correct date should instead be 19 October 2020, being four years after the date on which the Agreement was approved.

[2] Following receipt of the application the Commission received separate correspondence from Maurice Blackburn Lawyers, on behalf of an individual who is currently seeking relief in the Federal Court of Australia in regard to the Commission’s earlier approval of the Agreement, and from Slater & Gordon Lawyers on behalf of the MUA division of the Construction, Forestry, Maritime, Mining and Energy Union. Both indicated that their clients wished to be heard in regard to the present application. The Commission accordingly listed the matter for hearing and issued directions regarding the filing of submissions and evidence.

[3] The Applicant’s submissions and evidence were subsequently received on 1 April 2019 in accordance with those directions. However, on 15 April 2019 the Commission received further correspondence from both Maurice Blackburn Lawyers and Slater & Gordon Lawyers indicating that their respective clients no longer wished to be heard in regard to the application. The Commission subsequently advised that it now intended to determine the matter “on the papers,” after receiving confirmation from the Applicant that it did not intend to adduce further evidence or provide further submissions in support of the application.

The Applicant’s submissions

[4] The Applicant’s submissions point out that clause 3.1 of the Agreement states:

“The Agreement shall commence operation 7 days after the Agreement is approved by the Fair Work Commission and its nominal expiry date shall be four (4) years after the date this Agreement is approved by the Fair Work Commission.”

[5] However, as indicated already the decision approving the Agreement, which was handed down on 19 October 2016, states in the concluding paragraph:

“The Agreement is approved and, in accordance with s.54(1)(a), will operate from 26 October 2016. The nominal expiry date of the Agreement is 19 October 2019.”

[6] The application for approval of the Agreement was filed in the Commission on 6 October 2016. It attached a copy of the Agreement, which set out clause 3.1 in the terms described above. Both the Australian Maritime Officers’ Union and the Maritime Union of Australia, as it was then known, filed a Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement in response to the application. Both declarations indicated that the respective Unions supported the approval of the Agreement by the Commission and wanted to be covered by it.

[7] The decision handed down by Vice President Watson on 19 October 2016 attached the Agreement as approved by the Commission. It again set out at clause 3.1 the wording referred to above indicating that the nominal expiry date was intended to be 4 years after the date on which the Agreement is approved by the Commission.

[8] The Applicant also makes reference in its submissions to s.12 of the Act which relevantly provides:

“nominal expiry date:

(a) of an enterprise agreement approved under section 186, means the date specified in the agreement as its nominal expiry date;”

[9] It continues to submit that this intends that the date specified in the Agreement as the nominal expiry date can only be the relevant date, and the Commission has no power to determine another date.

[10] The Applicant submits, in conclusion, that the only rational explanation for the date specified in the decision of Vice President Watson as the nominal expiry date is that it was included erroneously, and that obvious error should now be corrected so as to confirm the correct date.

[11] The application is also supported by a witness statement of Mr Christopher Gardner, the lawyer acting on behalf of VICT at the time the application for approval of the Agreement was made to the Commission.

Consideration

[12] Section 602 of the Act provides as follows:

“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.” 2

[13] I am accordingly satisfied that the Commission has the power under s.602 to amend the terms of a decision handed down by a Commission member in circumstances where the Commission is satisfied that the decision contains an obvious error, defect or irregularity, as now proposed by the present application.

[14] I have considered the submissions and evidence provided by the Applicant. The application is also not opposed. I am satisfied in response that the only explanation for the nominal expiry date specified in the earlier decision of Vice President Watson, handed down on 19 October 2016, is that an obvious error was made in the context of that decision. The terms of the Agreement make clear that the nominal expiry date of the Agreement was intended to be four years after the date of the Agreement being approved by the Commission, and there is nothing to suggest that any other date was ever intended.

[15] I am also satisfied that it is appropriate to correct that obvious error in order that the terms of the Agreement approved by the Commission accurately reflects the original intention of the parties to the Agreement. I therefore intend to make an order amending the Agreement in the terms proposed by the Applicant. The order will make clear that the decision in [2016] FWCA 7585, handed down on 19 October 2016, is corrected by indicating that the figure “2019,” which appears in paragraph 4 of the decision, is deleted and is replaced instead with the figure “2020.”

[16] An order to this effect is issued in conjunction with this decision.

COMMISSIONER

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<AE421804  PR707369 >

 1   [2016] FWCA 7585 at [4]

 2   Fair Work Act 2009 (Cth) at s.602