Fair Work Act 2009

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

JOHN CURTIN AGED CARE INC, AND STAFF ENTERPRISE AGREEMENT 2014

Application for an order varying the decision [2014] FWCA 6586.

[1] This decision deals with an application by John Curtin Aged Care Inc (the Applicant) made under s.602 of the Fair Work Act 2009 (Cth) (the Act). It seeks to vary the decision I handed down on 22 September 2014 in [2014] FWCA 6586[1]. That decision approved the John Curtin Aged Care Inc, and Staff Enterprise Agreement 2014 (the Agreement), following an application made under s.186 of the Act.

[2] The present application seeks to vary Clause 11.4(a) of the Agreement.

[3] Clause 11.4(a) reads as follows:

• (a) Early Morning/Afternoon Shift - Employers rostered hours of ordinary duty either (1) finish between 6.00pm and 8.00am, or (2) commence between 6.00pm and 8.30am.

[4] The amendment sought would amend Clause 11.4(a) to read as follows:

• (a) Early Morning/Afternoon Shift - Employers rostered hours of ordinary duty either (1) finish between 6.00pm and 8.00am, or (2) commence between 6.00pm and 6.30am. (emphasis added)

[5] The Applicant asserts that the error in Clause 11.4(a) to the early morning component of the shift allowance was the result of a typographical error in the drafting stage of the Agreement. It is put by the Applicant that the provision was not sought by the parties during the bargaining for the Agreement nor was it identified throughout the bargaining process as a change to the Agreement.

[6] On 19 November 2019, I caused correspondence to be issued to the Applicant, the Australian Nursing and Midwifery Federation (ANMF) and the Health Workers Union (HWU), as the bargaining representatives for the Agreement. The correspondence sought to confirm two matters; whether or not the bargaining representatives consented to the application being granted for the reasons articulated in the application and advice from the parties that there is agreement that the Fair Work Commission (the Commission) has jurisdiction to grant the application as sought, taking into account that the Agreement has passed its nominal expiry date.

[7] The ANMF and HWU responded on 3 December 2019 advising they consent to the application being granted for the reasons articulated in the application and confirmed their understanding that the Commission has jurisdiction to grant the application as sought.

[8] Mr Tindley, of FCB Workplace Law, responded on behalf of the Applicant also on 3 December 2019, to confirm their understanding that the Commission has jurisdiction to deal with the matter having regard to the fact that the Agreement has passed its nominal expiry date.

[9] 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:

[10] 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.

[11] I have considered the application and the responses from the bargaining representatives. The application is not opposed.

[12] I am also satisfied that it is appropriate to correct the 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.

[13] An order to this effect will be issued following this decision.

[1] John Curtin Aged Care Inc, and Staff Enterprise Agreement 2014.

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

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