DECISION

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

Western Sydney University
(ADM2018/1)

COMMISSIONER MCKENNA

SYDNEY, 23 JANUARY 2018

Application to correct obvious error(s) etc. in relation to FWC’s decision.

[1] On 15 January 2018, Western Sydney University (formerly known as the University of Western Sydney) made an application pursuant to s.602 of the Fair Work Act 2009 (Correcting obvious errors etc. in relation to FWC’s decisions) to insert certain words at the end of a sub-clause in the text of the University of Western Sydney Academic Staff Agreement 2014 (“Agreement”) (AG2014/9890, as approved by me in [2014] FWCA 8832).

[2] The University and the National Tertiary Education Industry Union agree that the words in question had been the subject of accidental omission from the Agreement at a time when it was voted-upon by employees of the University. This is the second such application to come before me concerning the Agreement; and this second application is advanced on grounds which are essentially on all fours with the previous application. In that respect, see my decision in University of Western Sydney [2015] FWC 4793 dismissing the earlier application on jurisdictional and other bases, and the decision of the Full Bench on the appeal ([2015] FWCFB 6846 and [2015] FWCA 7099).

[3] Given the similarities between the present application and the matters advanced in relation to the earlier application, and the outcome determined by the Full Bench on the appeal in that matter, I amend cl.19.1 of the Agreement, with effect from 12 December 2014, by the insertion of the following words at the end of the sub-clause: “, provided that the loading will not exceed the loading applicable to Level B, Step 3 as set out in Schedule 1: Salaries.”

COMMISSIONER

Appearances:

N Mailo for Western Sydney University.

J Gava for the National Tertiary Education Industry Union.

Hearing details:

2018.

Sydney:

19.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Western Sydney University, formerly known as the University of Western Sydney, sought to amend a clause in the University of Western Sydney Academic Staff Agreement 2014. The application was brought under section 602 of the Fair Work Act 2009, which allows for the correction of obvious errors in Fair Work Commission decisions. The University and the National Tertiary Education Industry Union agreed that certain words were accidentally omitted from the Agreement during the period when it was voted upon by the University’s employees.

The primary legal issue before the Commissioner was whether the omission constituted an obvious error warranting correction under section 602 of the Act. The University argued that the omission was inadvertent and significant, as it affected the interpretation of the Agreement's terms. The Commissioner noted the similarity of this application to a previous one dismissed on jurisdictional and other grounds. The Full Bench had previously ruled on the appeal, establishing a precedent that influenced the current decision.

In light of the previous ruling and the similarities between the cases, the Commissioner decided to amend clause 19.1 of the Agreement. The amendment inserted specific words at the end of the sub-clause, effective from December 12, 2014. The insertion was made to ensure the loading did not exceed the specified threshold as outlined in Schedule 1: Salaries. The decision effectively corrected the omission, aligning the Agreement with the parties' original intent.

Western Sydney University

DECISION

CaseChat Overview and Summary

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Legal Principle Established