Fair Work Act 2009_

s.185 - Application for approval of a single-enterprise agreement

Correction to remove CEPU as an organisation covered by the Agreement - s.602 - limitations on applications to revoke and vary agreement decisions - did CEPU make a mistake or did it change its mind in relation to coverage.

[1] On 3 February 2014 I approved the WDS CSG Construction Enterprise Agreement (QLD) 2014 - 2017 ("the Agreement"). In the course of so doing I indicated that the CEPU was a bargaining representative for the Agreement, for reason that it had given notice under s.183 of the Fair Work Act 2009 ("the Act") that it wanted to be covered by the Agreement. Consequently, in accordance with s.201(2) of the Act in the decision to approve the Agreement, I noted that the Agreement covered the CEPU.

[2] On 15 October 2014 I received a statutory declaration by Mr Daniel McGaw, an organiser employed by the CEPU. The statutory declaration set out the details around which he as the responsible organiser "did not conduct the regular process of checking the detail of the Agreement" at the time he was considering whether the CEPU would seek to be covered by the Agreement. Mr McGaw declared that he "did not identify the deficiencies in the proposed agreement" as he ordinarily would have for reasons that he was on leave at the time and did not act with due care.

[3] Mr McGaw went on to declare that he provided a direction, erroneously based, to the CEPU's administrative personnel to arrange to have signed the notice under s.183 of the Act requesting that the CEPU be covered by the Agreement.

[4] In light of the circumstances which have come to light, the CEPU now wishes to withdraw from coverage of the Agreement, and to have the approval decision amended to reflect that outcome.

[5] The question that arises in respect of such a request is the power by which the Commission would give effect to such an application.

[6] Section 183 of the Act provides that an employee organisation, subject to certain conditions, may be covered by an enterprise agreement. Section 183 provides:

(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.

(2) The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.

[7] Section 201 of the Act requires that a decision approving an enterprise agreement must note certain matters. Relevantly, s.201(2) provides:

(a) an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and

the FWC must note in its decision to approve the agreement that the agreement covers the organisation.

[8] 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 [2011] FWAFB 7214.

[9] 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.

[10] 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:

[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.

[11] Consistent with the guidance of the Full Bench, the employer has been provided an opportunity to be heard in respect of the application by the CEPU. The employer initially opposed the exercise of the relevant power and sought to cross examine the CEPU official concerned. But upon further clarification that the CEPU withdrawal from coverage would have no implication for the bargain itself, the employer withdrew is objection.

[12] Therefore, in the circumstances before me now, the CEPU has indicated that it provided information to the Commission that arose from error on the part of its internal decision-making, and which did not reflect the employee organisation's actual intentions, or its disposition in relation to the Agreement. On the basis of that misinformation I proceeded to make the required notation in the Agreement approval decision.

[13] In my view, the misinformation provided to the Commission by the CEPU has led to an irregularity in relation to the approval of the Agreement, albeit only in so far as the Agreement approval decision included a notation that the CEPU sought to be covered by the Agreement. But for the provision of wrong information about the CEPU's actual intention, the Commission would not have included a notation that the CEPU was an organisation to be covered by the Agreement.

[14] That is, if the CEPU had applied its ordinary processes for determining support for coverage by an enterprise agreement, it would not have notified the Commission and the employer of its wish to be covered by the Agreement. The inclusion of the notation (made under s.201(2) of the Act) is therefore 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.

[15] Of course, if the evidence had been that the CEPU had merely changed its mind and no longer sought to be covered by the Agreement, the power to amend the Agreement under s.602 of the Act would not have been available. But the evidence here is that the CEPU inadvertently requested to be covered by the Agreement, and the notice effecting coverage was based on an irregularity on the part of the CEPU: the CEPU did not merely change its mind as to whether it would be covered by the Agreement.

[16] The Full Bench referred to above emphasised that the powers under s.602 of the Act are to be used cautiously. It appears to me that the exercise of such powers in this particular instance is warranted. The exercise of the powers to amend the approval decision does not affect the approval of the Agreement or subject the approval to any conditionality. Rather, the exercise of the powers serves only to amend the CEPU's status as an employee organisation covered by the Agreement and only removes the applicable notation. The Agreement will continue to operate on the terms as originally approved.

[17] In view of this, I therefore will issue a correction to the approval decision to give effect to my reasoning above.

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