Fair Work Act 2009_

s.602 - Correcting obvious errors etc.

Application to correct obvious error(s) etc. in relation to FWC's decision - application dismissed.

[1] The University of Western Sydney ("the University") has made an application, pursuant to s.602 of the Fair Work Act 2009 ("the Act"), to correct a decision ([2014] FWCA 8832) I made on 5 December 2014 to approve the University of Western Sydney Academic Staff Agreement 2014 ("the Agreement").

[2] Section 602 of the Act provides:

"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:

[3] Section 598 of the Act, including s.598(2) to which reference is made in the first legislative note to s.602, provides:

(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC's power to deal with disputes).

Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.

(2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC's decision to make or vary the instrument in the particular terms decided.

(3) A decision of the FWC that is described as an order must be made by order.

Note: An example of a decision that is described as an order is a bargaining order.

(4) A decision of the FWC that is not described as an order may be made by order."

[4] The University submitted the Agreement itself - as both put to a vote and subsequently approved by my decision of 5 December 2014 - inadvertently did not contain certain text regarding staff progression, but the inadvertent omission of the text in question was not detected until after the Agreement had been approved. A background to matters in this regard was set out in the initiating process and in an affidavit in support of the application for the correction order. The National Tertiary Education Industry Union ("NTEU"), which was a bargaining representative for employees in the negotiations for the Agreement, indicated it did not object to the University's application. Shortly stated, the NTEU shared the University's view about the text in question. The University had appointed external bargaining representatives (Bruce Heddle and Darren Gardner of the law firm Maddocks) for the negotiations for the Agreement and the like; those bargaining representatives did not appear in the proceedings concerning the present application for a correction order.

[5] The order sought by the University was set out in the initiating process as follows:

"1. An order that Schedule 1 to the University of Western Sydney Academic Staff Agreement 2014 (2014 Agreement) be amended by inserting the following footnote to the pay rates for Level E Professors:

+ Incremental progression to step 2 of Level E does not apply. Progression will be by invitation of the University only.

2. That the order have effect from 12 December 2014, being the date on which the 2014 Agreement commenced operation."

[6] As to this, the grounds in support of the application for the order read in part:

"6. The Footnote was included in Schedule 1 to the University of Western Sydney Academic Staff Agreement 2009-2012 (2009-2012 Agreement). …

7. Schedule 1 to the 2009-2012 Agreement contained a number of transitional provisions specific to that Agreement, which were necessitated by the collapsing of Steps within Levels A and B with effect from 14 May 2010. During the course of deleting these now-obsolete transitional provisions whilst drafting the 2014 Agreement, the Footnote was also inadvertently deleted.

8. In the absence of the Footnote in Schedule 1 to the 2014 Agreement, Level E Step 1 academic staff will automatically progress to Level E step 2 pursuant to subclause 16.5 of the 2014 Agreement, which states:

An employee will be able to progress by annual increments to the top of the relevant salary level in Schedule 1, unless the increment is withheld in accordance with clause 42: Unsatisfactory Performance, clause 43 Misconduct or Serious Misconduct or clause 44: Research Misconduct.

This was not intended. Rather, it was intended that progression to Level E, Step 2 remain at the Applicant's invitation."

[7] The application indicated that removal of the text in question was not identified as a proposed change when enterprise bargaining negotiations occurred or in papers lodged with the Commission in support of the approval of the Agreement as to better off overall considerations. The application for the correction order indicated that, if the order is not made, there will be a significant financial impact on the University, estimated to run to millions of dollars over the life of the Agreement. The affidavit in support of the application described the error as being "completely unintentional"; that it was not identified by the University, Maddocks or the NTEU when a final check of the Agreement was conducted; and that the deletion of the text was a "genuine administrative error".

[8] Notwithstanding my consideration of the matters referred to by the University and the NTEU, it is a condition-precedent to jurisdiction to making an order pursuant to s.602 of the Act that there be obvious error, defect or irregularity in a decision of the Commission; or, for example, if the Commission makes a decision that makes an instrument, the Commission's decision to make the instrument in the particular terms decided.

[9] If it is the case the content or the lack of content (however described) of an enterprise agreement which is approved by a decision of the Commission itself comprises a decision/instrument amenable to correction by the combined operation of s.598 and 602 of the Act, there was nothing in the Agreement (in the inadvertent omission of text) which could, within terms, objectively be characterised as an obvious error, defect or irregularity. The Agreement provides as it does, in the terms it does. The Agreement was the subject of the vote by employees in those particular terms; certain of those terms are now the subject of the application for an order to correct the Agreement (or, on another view of it, to vary or amend by inclusion of additional text that was never relevantly contained in the Agreement).

[10] Even accepting that equivalent text had been in the predecessor enterprise agreement, the University of Western Sydney Academic Staff Agreement 2009-2012, and that the particular text was not intended by the University, the University's external bargaining representatives, and/or the NTEU to be excised from its successor enterprise agreement, or the omission of the text in the Agreement was the result of some form of typographical error/omission in compiling the final form of the Agreement that was put to a vote by employees, the fact is that the text simply was not included. Despite the matters relied upon concerning the application (and, I observe, the most fairly-put submissions of the University and the NTEU), there is no obvious error, defect or irregularity in the Agreement as put to employees and approved by them in the voting process. Moreover, it is not suggested there is any obvious error, defect or irregularity in my own decision of 5 December 2014 approving the Agreement.

[11] Reference was made in the proceedings to decisions where corrections have been made to enterprise agreement decisions and post-approval enterprise agreements, including University of Western Sydney General Staff Agreement 2009-2012 [2011] FWAA 185 per Raffaelli C (unintentional omission from an agreement); Theiss Pty Ltd; Balfour Beatty Pty Ltd [2011] FWA 8921 per Ryan C (wage table inadvertently not included in the final version of the agreement as filed for approval); and Charter Protective Services Pty Ltd Enterprise Agreement 2014 [2015] FWCA 3731 per Gregory C (name of employer). See also, for example, Boroondara City Council Nurses Employees' Agreement No. 7, 2013 [2014] FWC 900 per Smith DP and WDS (Energy & Infrastructure) Pty Ltd [2015] FWC 157 per Richards SDP.

[12] Correcting obvious errors and the like in relation to Commission decisions has been considered by a number of Full Benches, including 4 Yearly Review of Modern Awards - Transitional Provisions [2015] FWCFB 2835; CPSU, the Community and Public Sector Union v Water Corporation [2015] FWCFB 3270; and 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 [2011] FWAFB 7214. None of these Full Bench decisions is directly in point but, I note, they otherwise emphasise the need for, compendiously described, a cautious approach to corrections under s.602 of the Act. I have also read relevant provisions of the Explanatory Memorandum to the Fair Work Bill 2008, which explain in part:

"2304. FWA has power to make and vary a range of instruments such as modern awards, national minimum wage orders and majority support determinations. The decision to make or vary an instrument would generally be a decision to make or vary the instrument in particular terms - e.g., a decision to vary a modern award to add a particular term. The decision could be varied or appealed, including as to the terms of the instrument made or varied. Subclause 598(2) is intended to make it quite clear that this is the case. It provides that, if FWA makes or varies an instrument, a reference in this Part to a decision of FWA includes FWA's decision to make or vary the instrument in the particular terms decided.

2316. In order to avoid unnecessary technicality, clause 602 allows FWA, on its own initiative or on application by a person, to correct or amend any obvious error, defect or irregularity in relation to a decision of FWA (including an instrument made by FWA). This clause is intended to be a statutory analogue of the 'slip rule' used by superior courts to correct certain errors in orders (see Re Timber and Allied Industries Award 1999 [2003] AIRC 1137 at [29]-[30]). …"

[13] Although the Full Bench decision in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447 is, again, not directly in point (given that case turned on construction or interpretation of enterprise agreements), at least some of the principles at [41] nonetheless seem broadly apposite considering what has been put in support of the application:

"4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties."

[14] In some ways, the present application for a correction order seems, and I do not say this in any pejorative way at all given the matters reasonably raised in support of the application, to seek an order so that the Agreement will provide something different, and substantially different, from what it, in terms approved by an employee vote and then the subject of a decision of the Commission approving the Agreement, actually provides.

[15] The Commission does not have powers at large to determine or change the terms of an enterprise agreement. While this application is not brought under s.603 (varying and revoking Commission decisions), to the extent any potential guidance to legislative intent concerning enterprise agreements may be discerned, s.603(3)(b) specifies that the Commission must not vary or revoke certain decisions - including enterprise agreement decisions. The Act otherwise provides mechanisms for variation of enterprise agreements including, for example, applications pursuant to s.210 (application for approval of a variation of an enterprise agreement), s.217 (variation of an enterprise agreement to remove an ambiguity or uncertainty) and s.218 (variation on referral by the Australian Human Rights Commission).

[16] Given matters advanced by the University and the NTEU as to what was effectively premised to be contained in the Agreement as a type of replication of text from the predecessor enterprise agreement, it is unfortunate that this error or omission occurred. Nonetheless, I do not consider the content of an enterprise agreement is comprehended by the combined operation of ss.598 and 602 of the Act as being amenable to correction by order of the Commission (and, even if not generally, certainly in relation to the particular correction here being sought). The Commission does not, for example, make an enterprise agreement; the Commission makes a decision, which is required to be published, if and when it approves a particular enterprise agreement further to an application made pursuant to s.185(1) of the Act.

[17] If, however, it is the case there is jurisdiction to make an order of the type sought by the University in circumstances where there is no relevant obvious error, defect or irregularity (save as, that is, to the Agreement mistakenly not including text the University and/or the bargaining representatives effectively assumed to be contained in the Agreement as against what actually was contained in the Agreement), I would not exercise my discretion to make such an order.

[18] On the basis of what was before me, if the proposed order were made it would result in a substantial change to the Agreement - not, for example, a slip rule-type of change described in item 2316 of the Explanatory Memorandum. While I am not unsympathetic to the matters raised by the University in seeking the order, given the estimated financial impost to the University and considering also what was put as a joint position of the University and the NTEU in concurring that in their view there was drafting error or omission in the Agreement, I cannot with any confidence otherwise speculate on what matters in the Agreement may have led the employees who voted in favour of it to cast their votes in the way they did or what may have been those employees' understanding or (plain) reading of the Agreement - separately, that is, from the understanding or intent of the University, the external bargaining representatives the University appointed, and/or the NTEU. In that regard, I respectfully agree with the approach described in Pulteney Grammar School Inc Enterprise Agreement (2015-2018) [2015] FWCA 3863 where O'Callaghan SDP said he was "not persuaded" that a revised schedule to an enterprise agreement can be described as an error that could be corrected pursuant to s.602 of the Act or that the Commission "has the capacity to unilaterally alter the Agreement that was approved by the employees."

H. Eager, solicitor - Minter Ellison Lawyers - for the University of Western Sydney.

T. Talmacs with J. Falloon for the National Tertiary Education Industry Union.

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