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[2020] FWC 1825
General information, not legal advice.
Fair Work Commission
2020-05-01
Original judgment source is linked above.
s.602 - Application to correct obvious error(s) etc. in relation to FWC's decision
Hospitality Performance Leaders Pty Ltd t/a Nu Force Security Group
NU FORCE SECURITY GROUP "YOU'RE IN GOOD HANDS" AGREEMENT 2019
Application to correct an error in the Nu Force Security Group "You're in Good Hands" Agreement 2019.
[1] Nu Force Security Group has applied for a correction or amendment to the decision in [2020] FWCA 1777 (the Decision) under s.602 of the Fair Work Act 2009 (Cth) (the Act).
[2] In the Decision it was determined to approve the Nu Force Security Group "You're in Good Hands" Agreement 2019 (the Agreement). The Decision records that the Commission reached the requisite satisfaction that each of the requirements of ss.186, 187, 188 and 190 were met on the basis of the material contained in the application, amended agreement signature page, further information provided on request of the Commission and written undertakings which were given in accordance with s.190 of the Act. The undertakings were taken to be terms of the Agreement. This application seeks to correct an "obvious error" in the undertakings.
[3] During the course of the approval proceedings, the Commission raised various concerns about whether employees to be covered would be "better off overall" under the proposed enterprise agreement than if the relevant award applied. This included a concern that the flat rate payment structure did not appear to provide sufficient compensation, depending on the hours worked and when they were worked.
[4] As the employees to be covered by the proposed enterprise agreement were not represented by anyone in bargaining, the Commission took steps to ensure that they were served with the application materials and the Commission's concerns, invited to provide their views and participate in the proceedings. Two employees to be covered by the proposed enterprise agreement corresponded directly with the Commission in response.
[5] On 27 February 2020, a conference was convened and attended by a representative of Nu Force Security Group. The concerns about the proposed enterprise agreement, the views of the two employees as expressed to the Commission and undertakings to address those concerns were discussed.
[6] On 28 February 2020, Nu Force Security Group filed its proposed written undertakings to address the concerns, including:
the inclusion of an optional alternative to the flat rate structure, a base rate structure with a table of base rates plus applicable penalties and overtime rates;
the inclusion of a reconciliation provision; and
some consequential amendments to give effect to the base rate structure.
[7] Nu Force Security Group filed evidence that it communicated with the employees to be covered by the proposed enterprise agreement to explain its proposed undertakings and invite their views. That communication included the following statement:
"In summary, the undertaking.. (ensures that) .. those who elect to be on the flat rate of pay system (remembering that this will only apply to new employees and those of you who elect to do so in writing) will have their wages checked against the Award each three months. Rates of pay for employees who choose to remain on the award (ie not be paid a flat rate) have been slightly increased."
[8] On 28 February 2020 and 3 March 2020, Nu Force Security Group provided evidence to the Commission of its service of those proposed written undertakings on the relevant employees. A signed copy of the proposed undertakings was subsequently filed on 5 March 2020 but could not be accepted in the form provided.
[9] On 12 March 2020, Nu Force Security Group filed its amended proposed written undertakings (Undertakings) which included the same rates in the base rates table as the originally proposed undertakings. On 17 March 2020, Nu Force Security Group provided evidence to the Commission of its service of the Undertakings on the relevant employees. The employees to be covered did not indicate any concern about or opposition to the proposed Undertakings.
[10] On 2 April 2020, the Decision was published and the Agreement was approved with the Undertakings taken to be a term of the Agreement.
[11] On 6 April 2020, this application was filed seeking to correct an "obvious error" in the base rates table which formed part of the Undertakings. On 8 April 2020, the Commission issued directions for the exchange of materials in relation to this application. The Commission took steps to ensure that affected employees were served with a copy of this application, the Commission's directions and any material on which Nu Force Security Group sought to rely in support of its application. The directions afforded affected parties an opportunity to be heard in relation to the application. The Commission also provided its directions to the two employees who had addressed the Commission during the approval proceedings.
[12] On 8 and 10 April 2020, Nu Force Security Group filed evidence of its service of the application and the Commission's directions on the affected employees. It also filed evidence of a communication sent to all affected employees with an explanation of its error and proposed correction.
[13] On 10 April 2020, Nu Force Security Group filed its submissions in support of the application for a correction. Nu Force Security Group asks the Commission to accept that there was an obvious error in the Undertakings it provided to the Commission. The error was clerical in nature and due to a mistaken "cut and paste". In summary, it contends that the error is obvious because the base and flat rates of pay are identical which is contrary to its intent of providing an alternate to the flat rate structure at rates that are "slightly" above award. It says the error is evident when regard is had to the wording immediately preceding the wage table. It asks the Commission to find that this is an appropriate case to exercise the discretion under s.602 of the Act. As at 1 May 2020, the Commission has not received any objection to the application.
The present application - whether to correct an obvious error
[14] Section 602 of the Act provides:
602 Correcting obvious errors etc. in relation to the FWC's decisions
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 subsection (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:
[15] Section 602 is "intended to be a statutory analogue of the 'slip rule' used by superior courts to correct certain errors in orders".[1]
[16] It must be applied with caution[2] and only in circumstances in which the use of the "slip rule" is permissible:[3]
[17] The Commission can not otherwise vary an enterprise agreement approval decision (s.603(3)(b)), reinforcing the caution with which the power at s.602 is to be exercised.[5]
[18] The power to correct an obvious error under s.602 is not confined to an error made by the Commission and may extend to obvious errors made by the parties reflected in instruments the Commission makes.[6] The correction should be such that had the matter been drawn to the court's attention, the correction would have been made at once. Where the proposed corrections would alter the substance of an order in a matter on which there might be a real difference of opinion, the rule does not apply.[7]
[19] In RotoMetrics, a Full Bench upheld an appeal of a decision to approve an enterprise agreement involving an error at first instance in including a note that a union was covered by the Agreement when in fact that precondition had not been met. In so finding, the Full Bench observed that:
"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."[8]
[31] .... 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.
[20] In the present case, there is no dispute that the alleged error occurred on the part of the representative of Nu Force Security Group. Indeed, the error occurred on more than one occasion in that it was present in each version of undertakings proposed on 28 February, 5 and 12 March 2020.
[21] Nu Force Security Group provided the Undertakings in response to concerns that the proposed enterprise agreement did not pass the better off overall test. The Undertakings plainly describe the base rate structure as an "alternate" to the flat rates under clause 20 of the Agreement. The heading to the base rate table also provides "Table: Base rate of pay for employees not subject to clause 20 (Flat Rate)". Yet a comparison of the base and flat rates tables reflects that the rates in the Undertakings and at clause 20 are identical. It is therefore apparent that there was an administrative error or mistake in the drafting of the Undertakings. Further, the correction sought is higher in all cases than the requisite award rates and ensures employees are better off overall than if the Security Services Industry Award 2010 applied. I am satisfied that the proposed correction meets the requirements of s.190 of the Act. Accordingly, I consider that the correction sought would have been accepted had the issue been mentioned during the approval proceedings.
[22] There is no evidence or indication of material differences of opinion or controversy between the parties. In this respect, I note that the correction sought is consistent with the original communication to employees which explained the intent of the proposed undertakings. Further, since the Agreement was approved, the employer has communicated with employees to explain the error that it made, the Commission has ensured employees are informed of the application and afforded an opportunity to respond. The affected parties were afforded an opportunity to be heard and did not seek to oppose or object to the proposed correction.
[23] The power under s.602 is one to be exercised with caution. However, it is a power to correct a mistake. For the above reasons, I am satisfied that the proposed correction is such that it would have been made at once had it been drawn to the Commission's attention. Further, that there is no real difference of opinion which would mean that the rule should not otherwise be applied. Accordingly, pursuant to s.602 of the Act, the decision issued by the Commission on 2 April 2020, [2020] FWCA 1777 is amended so that the Agreement (including the undertakings taken to be a term of the Agreement) are replaced with the version attached.
[1] Explanatory Memorandum to the Fair Work Bill 2008, at paragraph 2316, with reference to Re Timber and Allied Industries Award 1999 [2003] AIRC 1137 at [29]- [30].
[2] Gould v Vaggelas (1985) 157 CLR 271, at [275]; Handa v Minister for Immigration and Multicultural Affairs [2000] FCA 1830 at [17] and Re Timber and Allied Industries Award 1999, PR937647, at [35].
[5] Schweppes Australia Pty Ltd v United Voice - Victoria Branch [2012] FWAFB 7858 at [348] and RotoMetrics Australia v AMWU [2011] FWAFB 7214 at [27] to [32].
[6]Schweppes Australia Pty Ltd v United Voice - Victoria Branch [2012] FWAFB 7858 at [348] and L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at [6].
[7] Re Rigforce Pty Ltd [2019] FWC 3023 at [7].
[8] RotoMetrics Australia v AMWU [2011] FWAFB 7214 at [27].
Printed by authority of the Commonwealth Government Printer
(1985) 157 CLR 271
(1982) 151 CLR 590