Fair Work Act 2009

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

Application by Spotless Facility Services Pty Ltd.

[1] On 1 June 2018, the Fair Work Commission (the Commission) issued a Decision ( [2018] FWCA 3090), (the approval Decision), wherein the Spotless Public Hospitals (Victoria) Enterprise Agreement 2017 (the 2017 Agreement) was approved. The approval Decision identified that the application for approval of the 2017 Agreement had been made by Spotless Facility Services Pty Ltd (Spotless).

[2] The approval Decision noted, inter alia, that the 2017 Agreement as varied by Undertakings, operated from 8 June 2018, and had a nominal expiry date of 30 September 2020. Further, the approval Decision also noted that the 2017 Agreement covered the Health Services Union (HSU).

[3] On 15 June 2018, The Australian Industry Group (AI Group) acting on behalf of Spotless, made an application (the correction application) pursuant to section 602 (2) (b) of the Fair Work Act 2009 (the Act). Section 602 of the Act provides a statutory basis for the Commission to correct obvious errors or defects in relation to Decisions of the Commission. Section 602 is in the following terms:

**"**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:

[4] It is also relevant to recognise that section 598 of the Act provides an explanation for what may be recognised as a Decision of the Commission for the purposes of inter alia, section 602. Section 598 of the Act is in the following terms:

(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."

[5] In brief, the correction application asserted that the approval Decision had involved an unintentional typographical error that was included in clause 17.2 of the 2017 Agreement. The purported typographical error contained in clause 17.2 involved the figure of 1/35'" stated as the basis for calculation of the hourly rate for casual employees working under the 2017 Agreement. The correction application asserted that the figure of 1/35'" should have read as 1/38th.

[6] The correction application was the subject of Mention and Directions proceedings held on 27 June 2018, and subsequently a Hearing of the matter was conducted in Melbourne on 7 September 2018.

[7] At the Hearing of the correction application, AI Group introduced evidence on behalf of Spotless which included various witness statements of management personnel who had been involved in the bargaining for the 2017 Agreement, together with witness statements from a number of casual employees of Spotless. The HSU also provided witness evidence from its relevant officer who was involved with the bargaining for the 2017 Agreement. Importantly, the publicly listed Hearing of the correction application in Melbourne provided proper opportunity for any potentially aggrieved individual(s) to express concern or make any other representations to the Commission.

[8] The Commission has carefully considered the broadly uncontested evidence that has provided a logical explanation of the inclusion of the figure 1/35'" appearing in clause 17.2 of the 2017 Agreement. In particular, it is relevant to recognise that the figure 1/38th appeared in clause 17.2 of the Spotless Public Hospitals (Victoria) Enterprise Agreement 2010 (the 2010 Agreement) which was the industrial instrument that was replaced by the 2017 Agreement. Further, the evidence has established that as part of the bargaining process for the 2017 Agreement, the 2010 Agreement document was copied from a Portable Document Format (PDF) into a Microsoft Word document, and in that process the 1/38th figure has been incorrectly translated into the figure 1/35'". The incorrect translation of the figure that occurred during the PDF translation process is reflected by the inclusion of the series of commas appearing after the numeral 5 as '". The PDF document conversion process obviously misread the numeral 8th and translated it into 5'".

[9] Consequently, the Commission is satisfied that there has been an obvious error involving the inclusion of the figure of 1/35'" appearing in clause 17.2 of the 2017 Agreement. In circumstances where there was no evidence that this obvious error in any way influenced the voting of individuals that resulted in the making of the 2017 Agreement, the Commission is disposed to grant the correction application.

[10] Accordingly the approval Decision shall be corrected so that the figure of 1/35'" appearing in clause 17.2 of the 2017 Agreement shall be deleted and replaced with the figure of 1/38th. A correction Order providing for alteration to the approval Decision in these terms shall be issued separately.

Mr R McMahon of The Australian Industry Group appeared for the applicant.

Ms L Alcock and Mr S Crawford appeared for the Health Services Union

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