[2017] FWC 4535

Fair Work Act 2009

s.217 - Enterprise agreement

Valmet Pty Ltd T/A Metso Paper Service (ANZ) Pty Ltd

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Application for variation of enterprise agreement to remove ambiguity - no ambiguity found - consideration of power under s.602 to correct obvious error - no obvious error found- application dismissed - applicants attention drawn to s.207.

[1] The applicant has filed an application to vary to the Valmet Pty Ltd Enterprise Agreement 2015 (the Agreement) pursuant to s.217 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement and has a nominal expiry date of 24 October 2017.

[2] The applicant seeks an order that clause 5.1 of the Agreement is varied to read:

"5.1. This Agreement shall commence on 24 October 2015 and will have a nominal expiry date of 24 October 2018. The parties agree to commence bargaining for a replacement Agreement no later than two months prior to the nominal expiry date."

[3] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), being the employee organisation covered by the Agreement, supports this application.

[4] On 28 August 2017 I wrote to the applicant and to the AMWU asking them to advise whether they wished to make any further submissions or whether they were content for the matter to be determined on the papers.

[5] The applicant and the AMWU both gave written consent to the application being determined on the papers.

[6] The applicant argues that that there exists ambiguity in the Agreement as to the nominal expiry date.

[7] The application sets out the grounds for the application as follows:

"1. The nominal expiry date for the Agreement under clause 5.1 is 24 October 2017.

2. During bargaining for the Agreement, it was agreed that the Agreement would run for 3 years, not 2 as is presently the case. As such, the nominal expiry date was supposed to be 24 October 2018.

3. Due to a typographical error in the Agreement and the approval application documents, the nominal expiry date was noted as 24 October 2017.

4. It is clear from other clauses in the Agreement that the nominal expiry date was supposed to be 24 October 2018. Clauses 13.2.1 and 13.2.2 of the Agreement, clearly indicate that each wage increase was to cover a period of a year commencing from 24 October 2015. There are 3 wage increases, which is clearly indicative of a three year agreement. Appendix 1 to the Agreement is also unequivocal in referring to the Agreement running for 3 years.

5. The nominal expiry date in its current form is ambiguous when read against clauses 13.2.1, 13.2.2 and Appendix 1 of the Agreement.

6. In Application by Thomas Foods International Tamworth Pty Ltd [2014] FWCA 4406, the FWC has exercised this power in the same manner previously, under identical circumstances."

[8] The application was accompanied by a sworn affidavit deposed by Ms F. Tapper, HR Manager for Valmet Pty Ltd, in which Ms Tapper details a meeting of bargaining representatives on 4 September 2015 where it was agreed that the Agreement would have a 3 year operation.

"5. On 4 September 2015, I met with the bargaining representatives for the Agreement at the Applicant's premises, 14-28 South Road, Braybrook in the State of Victoria. At this meeting the following people were in attendance:

(a) David Roach, bargaining representative for the Automotive, Food, Metal Engineering, Printing and Kindred Industrial Union of Employees (AMWU);

(c) John Della-Bosca, Managing Director for the Applicant; and

(d) David Collier, Workshop and Business Development Manager for the Applicant.

6. During this meeting, I proposed to the other bargaining representatives that the Agreement should operate for four years. However, Mr Roach asked that the Agreement operate for three years. After consideration, I agreed with Mr Roach, and on that basis Valmet considered it was agreed that the Agreement would operate for three years.

7. After the first meeting, the negotiations proceeded on the basis that the Agreement would operate for three years.

8. The Negotiation meetings were attend by myself and the persons referred to in paragraph 5 of this Affidavit, on:

9. It had been agreed and concluded during bargaining that the Agreement was to operate for three years, with a nominal expiry date of 24 October 2018. However, in the final printed copy of the Agreement there was a typographical error within clause 5.1 of the Agreement where the expiry date of the Agreement is noted as "24 October 2017'.

10. Clauses 13.2.2 of the Agreement clearly indicates that the Agreement has contemplated a third year of operation allowing for 3 separate annual wage increases. This is replicated in Appendix 1 to the Agreement where it states "Year 3" in the header for the wage tables.

11 . Since discovering the typographical error, I have spoken with Mr Leon White when he visited the site on 14 June 2017, who confirmed with me that his understanding was that the Agreement was to operate for 3 years with a nominal expiry date of 24 October 2018.

12. To the best of my knowledge, none of the bargaining representatives oppose the Application."

[9] Section 217 of the Act states:

"217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(c) an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement."

[10] The precondition for the Commission exercising its power under s.217 is that there must be either an ambiguity or an uncertainty present within the terms of the enterprise agreement.

[11] In the present matter the ambiguity is said to arise because the Agreement has a nominal expiry date of 24 October 2017 whereas the Applicant and the AMWU as bargaining representative for employees, agreed that the nominal expiry date would be 24 October 2018.

[12] I have no hesitation in accepting the sworn affidavit of Ms Tapper that a mistake was made by putting the wrong nominal expiry date in the final version of the Agreement.

[13] However, a mistake does not necessarily mean that the Agreement contains either an ambiguity or uncertainty. Rather the opposite would appear to be the case. The Agreement is extremely clear that the nominal expiry date of the Agreement is 24 October 2017. The date of 24 October 2017 is as unambiguous as it is certain.

[14] Enterprise agreements can and do contain clauses relating to wage increases having effect post the nominal expiry date of an agreement.

[15] The applicant relies upon the decision in Thomas Foods International Tamworth Pty Ltd. In that decision Hamberger SDP was satisfied that a drafting error had been made in relation to the nominal expiry date of the agreement[1] and as such granted the application under s.217 of the Act. However, whilst Hamberger SDP said in that decision: "I am satisfied that the relevant legislative requirements have been met", the Senior Deputy President did not identify the ambiguity or uncertainty which was the jurisdictional prerequisite for exercising his power under s.217 of the Act.

[16] There are various other decisions of the Fair Work Commission which have concluded that the existence of a drafting error equates to ambiguity. Whilst this might be true in some circumstances, it will not be true in all circumstances.

[17] The Full Bench decision in AMIEU v Golden Cockerel P/L discussed the correct approach to determining whether an enterprise agreement contained ambiguity. This was reaffirmed by the Full Bench in AMWU v Berri P/L which reformulated the principles previously stated by the Full Bench in Golden Cockerel. The principles as stated by Berri are as follows:

"[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(ii) the disputed provision's place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. 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.

3. The common intention of the parties is sought to be 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, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

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

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."[2]

[18] In the present matter principles 7 - 9 are directly relevant. The simplicity of principle 7 is quite beguiling. It is necessary to keep firmly in mind that these principles were developed on the basis of a considered analysis of a number of cases. Importantly, in Golden Cockerel the Full bench quoted at length from the decision of the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA. It is important to restate that lengthy quote:

"To the extent that what was said in Jireh supports a proposition that 'ambiguity' can be evaluated without regard to surrounding circumstances and commercial purpose or objects, it is clear that it is inconsistent with what was said in Woodside at [35]. The judgment confirms that not only will the language used "require consideration" but so too will the surrounding circumstances and the commercial purpose or objects. Although the High Court in Woodside did not expressly identify a divergence of approach, Jireh was notoriously controversial in precisely this respect. In Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66; 298 ALR 666 at [107] McLure P referred to the "heated controversy" created by Jireh; see further Kevin Lindgren's analysis in 'The ambiguity of "ambiguity" in the construction of contracts' (2014) 38 Aust Bar Rev 153 at 161-167. It cannot be that the mandatory words 'will require consideration' used by four Justices of the High Court were chosen lightly, or should be 'understood as being some incautious or inaccurate use of language': cf Fejo v Northern Territory [1998] HCA 58; 195 CLR 96 at [45].

The general issue is important, such that it may be useful to state the position in some little detail.

First, in principle, every legal text requires legal interpretation, in order to ascertain its legal meaning, although there is no real scope for dispute about the interpretation of many legal texts. Professor Wigmore long ago wrote that 'the process of interpretation, then, though it is commonly simple and often unobserved, is always present, being inherently indispensable': JH Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (3rd ed 1940, Little Brown & Co, Boston), Vol 9 p 180; see now s2459 Chardourne Revision, 1981. Lord Steyn said, in the first John Lehane Memorial Lecture, that 'it is a universal truth that words can only be understood in relation to the circumstances in which they are used': J Steyn, 'The Intractable Problem of The Interpretation of Legal Texts' [2003] SydLawRw 1; (2003) 25 Syd L Rev 5 at 5. His Lordship regarded this as a 'fundamental principle of linguistic jurisprudence and legal logic'. I do not think there is any understatement in that statement. McHugh J made substantially the same point in Manufacturers' Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343:

'Until a word, phrase or sentence is understood in the light of the surrounding circumstances, it is rarely possible to know what it means.'

Lord Hoffmann, in a passage adopted by the joint judgment in Marley v Rawlings [2014] UKSC 2; [2014] 2 WLR 213 at [20], had said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64] that:

'No one has ever made an acontextual statement. There is always some context to any utterance, however meagre.'

Secondly, very often, language when considered in its context will have a single, clear meaning. Very often, there is no dispute as to the ordinary grammatical or literal meaning of a sentence, and no dispute that that is the legal meaning. Very often, nothing in the context will come close to displacing the ordinary grammatical meaning of the legal text. 'But not always': Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78]; Taylor v Owners - Strata Plan No 11564 [2014] HCA 9 at [65].

The legal meaning may diverge from its literal or grammatical meaning, especially in the (self-selectingly contestable) cases that reach courts. Words do not have a 'natural' meaning that can be determined in isolation. As Lord Hoffmann said in Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spigelman CJ, Weinberg AJA and Simpson J agreeing) and Dale v The Queen [2012] VSCA 324 at [73] (Weinberg, Harper and Whelan JJA):

'[I]n some cases the notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another. Thus a statement that words have a particular natural meaning may mean no more than that in many contexts they will have that meaning. In other contexts, their meaning will be different but no less natural.'

What is the legal meaning of a promise to sell 'my Dürer drawing', if the vendor's wife owns a Dürer drawing which is on display in their home, and the vendor keeps another secretly in his study? What is the meaning of a gift 'to my niece Eliza Woodhouse during her life' in a will, if the testator had no such niece, but a grandniece of that name, and another grandniece, who was illegitimate, who lived with him: cf In re Fish; Ingham v Rayner [1894] 2 Ch 83? What is the meaning of cl 7 of the Wild Dog Destruction Regulation 1999, which provided 'The Wild Dog Destruction Regulation 1994 is repealed'? Contracts, wills and statutes are very different legal texts, to the process of ascertaining whose legal meaning different rules apply, yet all are based on language, and language is unavoidably contextual. If I may repeat what I wrote of the uncertain meaning of the Wild Dog Destruction Regulation in Resolving Conflicts of Laws (Federation Press 2011), p 13, 'The meaning of even the seemingly clearest legal text can be unclear, hence the importance of attending to context in the first instance.'

For those reasons, to say that a legal text is "clear" reflects the outcome of that process of interpretation. It means that there is nothing in the context which detracts from the ordinary literal meaning. It cannot mean that context can be put to one side; otherwise the three legal texts mentioned in the previous paragraph would be "clear".

Thirdly, I would not regard anything in the foregoing as inconsistent with the passage in Mason J's reasons in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337 at 352 (which was the focus of Jireh):

'The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.'

There is no inconsistency because whether contractual language has a 'plain meaning' is (a) a conclusion and (b) a conclusion which cannot be reached until one has had regard to the context. That accords with what was said by Allsop P in Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17]:

'the phrase used by Mason J in Codelfa Construction (at 352) 'if the language is ambiguous or susceptible of more than one meaning' does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances ...'

Mason J was indicating that there are very real limits to the extent to which grammatical meaning can be displaced by contextual considerations. However, in order to determine whether more than one meaning is available, it may be necessary first to turn to the context.

Fourthly, what I have called "context" was formerly described as the 'surrounding circumstances', and then, influenced by Lord Wilberforce in decisions such as Prenn v Simmonds [1971] 1 WLR 1381 at 1384 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 997, as the 'matrix of facts'. See Byrnes v Kendle [2011] HCA 26; 243 CLR 253 at [98]- [100] (Heydon and Crennan JJ) and J Carter, The Construction of Commercial Contracts (Hart Publishing, 2013), pp 8-9.

Although Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28; [1998] 1 All ER 98 at 114 referred to a 'fundamental change' in the approach espoused by Lord Wilberforce, the "modern" contextual approach had nineteenth century precursors, at least in relation to commercial contracts. Without seeking to be exhaustive, the Earl of Selborne had deprecated and rejected the 'extreme literalism' in the mercantile contract construed in McGowan v Baine [1891] AC 401 at 403 (contrast the (dissenting) speech of Lord Bramwell, who had required 'necessity, or [something] approaching to it' in order to displace the 'primary and natural meaning of the words': see at 409). To the same effect was Lord Herschell's rejection of a process of construction by reference to dictionary meaning, and insistence that contractual language must be 'construed in a business fashion' and "interpreted in the way in which business men would interpret them" in Southland Frozen Meat and Produce Export Company Ltd v Nelson Brothers Ltd [1898] AC 442 at 444. The approach adopted by Lords Selborne and Herschell anticipated what was popularised by Lord Wilberforce in the following century. Professor Carter has examined the evolutionary process at pp 17-20 of his book referred to in the previous paragraph.

Fifthly, the approach endorsed in Woodside avoids the difficulty of identifying what is meant by 'ambiguity', itself an ambiguous term, whose perception 'differs from one judicial eye to the other': B & B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227 at 234. The various meanings of 'ambiguity' in this context are described by M Walton, 'Where now ambiguity?' (2011) 35 Aust Bar Rev 176 and D Wong and B Michael, 'Western Export Services v Jireh International: Ambiguity as the gateway to surrounding circumstances?' (2012) 86 ALJ 57 at 67-69.

Sixthly, the approach to construction of written commercial contracts reflected in Woodside at [35] accords with what had been said in familiar passages in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [22] (construction "requires consideration, not only of the text of the documents, but also the surrounding circumstances known to Pacific and BNP, and the purpose and object of the transaction"); Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40] ('The meaning of the terms ... normally requires consideration not only of the text but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction'); and the endorsement in Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522 at [15] of the proposition that 'Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure'. It means also that the Australian approach mirrors that adopted in England, New Zealand, Singapore and Hong Kong: Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 AC 1101; Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5; [2010] 2 NZLR 444; Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] SGCA 27; 3 SLR(R) 1029 (where the Court's reasons delivered by V K Rajah JA for the Court survey much of the English decisions and academic literature); Fully Profit (Asia) Ltd v Secretary for Justice [2013] HKCFA 40; 6 HKC 374.

Seventhly, although evidence of context and purpose expands the scope of the litigation, none of the foregoing should be seen as opening the door to lengthy litigation in commercial causes. As will be seen below, the evidence of 'surrounding circumstances' sought to be relied on by Mainteck was lengthy, contested, vague, and divorced - by many months in time, and a markedly different commercial position - from the execution of the Second Consortial Agreement. This makes it quite distinct from evidence which is apt to assist the process of construction. Indeed, I would infer that the primary reason for adducing the evidence was to support Mainteck's (now abandoned) misrepresentation case, rather than so as to assist in construction."[3]

[19] Whilst the discussion in each of Golden Cockerel, Berri and Mainteck Services cases concerned the meaning to be given to words, there is no reason to suggest that dates or numbers appearing in an enterprise agreement should be subject to any different approach.

[20] In the present matter it is the contention of the Applicant that clause 5 clearly contains an ambiguity because it refers to a nominal expiry date of 24 October 2017 when the Agreement provides for a wage increase to commence on 6 November 2017.

[21] The practical difficulty with taking into account the fact that the last wage increase is to occur on 6 November 2017 is that there is nothing in the Agreement which would suggest that the nominal expiry date could be read as meaning 24 October 2018. It might be arguable that the nominal expiry date should be after 6 November 2017 but nothing in any of the terms of the Agreement suggest that the nominal expiry date is ambiguous or uncertain or that it should be read as meaning 24 October 2018.

[22] The very language of clause 5 of the Agreement suggests that the two dates referred to: 24 October 2015 and 24 October 2017 were deliberately chosen.

[23] Clause 5 identifies that the Agreement is to commence on 24 October 2015. Whilst this is not the date that the Agreement operates from (24 November 2015 pursuant to s.54 of the Act) there is nothing in the Act which prevents an enterprise agreement from having terms which provide an enforceable benefit which commences from a date earlier than the date on which the enterprise agreement starts to operate. In the present matter both clause 13.2.1 and Schedule 1 of the Agreement provide that the first pay increase will commence on the first full pay period on or after 24 October 2015. Once the Agreement commences to operate as from 24 November 2015, any term of the Agreement that provides for a wage increase to be paid as from 24 October 2015 will then be enlivened and in this sense will operate retrospectively to 24 October 2015.

[24] If the Agreement can contain a term which provides for a pay increase before the Agreement has been approved by the Commission and before the Agreement commences to operate then it is reasonable to read clause 5 as providing for a nominal expiry date of 24 October 2017 and at the same time understanding that the Agreement provides for a pay increase to be given to the employees on 6 November 2017 after the nominal expiry date has past. There is nothing which prevents any enterprise agreement from containing a term that is not enlivened until after the nominal expiry date.

[25] Rather than support a conclusion that clause 5 contains an ambiguity in relation to the nominal expiry date, the plain language of clause 5, in the context of the Agreement as a whole and in context of the approval process for the Agreement, supports a reading of clause 5 in which the dates specified are taken to mean nothing more and nothing less than the dates specified.

[26] Again I can say that I have no hesitation in accepting the sworn affidavit of Ms Tapper that a mistake was made by putting the wrong nominal expiry date in the final version of the Agreement that was put to employees to vote on.

[27] However, it is relevant to have regard to principles 4, 5 and 13 from Berri:

"4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement."

[28] Just because the Applicant made a mistake in putting the wrong nominal expiry date in the final draft of the Agreement does not mean that the AMWU was not aware of the mistake and did not draw attention to the mistake when the employees were given access to the Agreement and asked to make the Agreement. Further just because the Applicant made a mistake in putting the wrong nominal expiry date in the final draft of the Agreement does not mean that any (let alone every) employee who voted to make the Agreement was aware that a mistake had been made in relation to the nominal expiry date.

[29] When viewed through the prism of the principles in Berri, as informed by the consideration in Golden Cockerel, it is clear that there is no ambiguity or uncertainty in relation to the dates specified in clause 5. The nominal expiry date of the Agreement is both unambiguous and certain.

[30] I note in passing that an approach adopted in another s.217 application was for the Commission to reject the contention that ambiguity existed but nevertheless agree to amend the enterprise agreement pursuant to s.602 of the Act. In O'Donnell Griffin P/L,[4] Bull C (as he then was) said:

"[14] While the Applicant or the CEPU have not referred to the Commission's ability to correct obvious errors in decisions of the Commission this is my view as to what is essentially sought. Where an obvious error in relation to a Commission decision exists the Commission is authorised under s.602 to correct the error:

"602 Correcting obvious errors etc. in relation to FWC's decisions

(1) FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If FWC makes a decision to make an instrument, FWC may correct etc. the instrument under this section (see subsection 598(2)).

Note 2: FWC corrects modern awards and national minimum wage orders

(2) FWC may correct or amend the error, defect or irregularity:

[15] Whilst a formal application is not before Commission, as can be seen from s.602(2)(b) the Commission is able to act under s.602 on its own initiative.

[16] In the Full Bench decision of 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 drawing from previous authorities the application of s.602 was explained by the Full Bench as follows:

'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'".

[17] I am satisfied that the references in clause 13 - Rostered Days Off referring to a 9 day fortnight is the result of a drafting error in a legal instrument due to inadvertence, mistake, accident or clerical error."

[31] Section 602 has been used on many occasions to correct obvious errors in decisions but it must be used cautiously and it is not an alternative to a section 217 application.

[32] In University of Western Sydney,[5] McKenna C refused an application pursuant to s.602 to amend an enterprise agreement where the University (supported by the NTEU) sought to have the Commission correct an obvious error in relation to a term of the enterprise agreement. The "obvious error" identified by the application in that matter was that a footnote which had been in the previous agreement had been inadvertently left out of the agreement in question. The effect of the absence of the footnote was that some staff would gain an automatic progression in salary level where the previous agreement had specifically prevented this and where the University and the Union agreed that the automatic progression was not intended.

[33] McKenna C said:

"[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."

[34] On appeal in University of Western Sydney v NTEU,[6] a Full Bench overturned McKenna C's decision. Importantly, the Full Bench did not comment on or criticise the decision at first instance in relation to McKenna C's analysis of the law. The Full Bench allowed the parties to present new evidence (which was not put to McKenna C) and on the basis of the new evidence the Full Bench was prepared to correct the error in the Agreement. Relevantly the Full Bench said:

"[3] Before Commissioner McKenna the appellant and the NTEU had sought to correct the Commissioner's decision to approve the 2014 Agreement. In essence the UWS and the NTEU agreed that a footnote to the 2014 Agreement had been inadvertently deleted with unintended adverse financial results for the UWS.

[4] Commissioner McKenna refused the application to correct. The Commissioner determined that there was no jurisdiction to make an order of the type sought by the UWS and the NTEU in circumstances where there was no relevant obvious error, defect or irregularity and that, in any event, had she had the jurisdiction to correct, she would not exercise her discretion to do so for the reasons as set out below.

'[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.''

[5] At the hearing of the appeal we allowed the parties to present new evidence which was not in the material before Commissioner McKenna. Ms Maiolo from UWS and Ms Talmacs from the NTEU gave evidence.

[6] At the conclusion of that evidence we were satisfied that:

● the proposal for approval put to the employees who voted for the 2014 Agreement was that all of the terms and conditions of the 2009 Agreement applied unaltered, unless there was a particular alteration or condition identified in the bargaining materials;

● the subject matter of the deleted footnote was not subject to negotiation by the parties;

● there was no communication issued by the NTEU to its members, or to any other employees, indicating that there would be any change to the subject matter of the deleted material;

● the UWS issued documents explaining the changes to the 2014 Agreement compared to the 2009 Agreement;

● during the access period for the 2014 Agreement a table was issued by UWS summarising the changes which were to occur and differentiating the 2009 Agreement from the 2014 Agreement. There was no indication that the subject matter of the deletion was to be altered;

● members of the NTEU have been circularised concerning the application before Commissioner McKenna and this appeal. Copies of the decision under appeal were also circulated and,

● if all those employees whose terms and conditions were potentially affected by the deletion, were to have voted against the 2014 Agreement, it would still have been approved by a majority.

[7] This is an appeal pursuant to s.604 of the Act. This Full Bench must determine whether or not to grant permission to appeal. Permission to appeal must not be granted unless it is in the public interest to do so.

[8] Having considered the adverse outcome for UWS if the proposed correction does not occur, this Full Bench has determined that it is in the public interest that permission to appeal be granted. We grant permission to appeal.

[9] On the basis of the new evidence before this Full Bench we allow the appeal. We set aside the decision of Commissioner McKenna. We will correct the error in the 2014 Agreement."

[35] Notwithstanding the outcome of the appeal the very fact that the Full Bench did not address any of the cases relating to either s.602 or the underlying concept of the 'slip rule' leaves McKenna C's analysis intact.

[36] A salient point made by McKenna C is that the relevant authorities "emphasise the need for, compendiously described, a cautious approach to corrections under s.602 of the Act."

[37] The Full Bench decision in University of Western Sydney v NTEU provides clear authority for s.602 to be used to change the enterprise agreement that was made by employees, even where the effect of the change is significant. However, even with the lack of comprehensive reasons, the decision of the Full Bench in University of Western Sydney v NTEU supports the need to take a cautious approach to the use of s.602 and the need for the Commission to have before it substantial evidence which not only identifies the error but which provides a real basis upon which the Commission can apply s.602.

[38] The Explanatory Memorandum to the Fair Work Act explained that s.602 "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])."

[39] A recent decision of Kelly J in University of Southern Queensland v Luck[7] provided a useful analysis of the law relating to the 'slip rule' and is in harmony with the decision in Re Timber and Allied Industries Award 1999.[8] In University of Southern Queensland v Luck, Kelly J distilled a number of principles from the authorities in relation to the 'slip rule'. The following extracts from the principles identified by Kelly J are relevant for the present discussion:

"(a) the slip rule reflects an inherent or implied jurisdiction of a superior court of record at any time to correct an error in a judgment or order arising from a slip or accidental omission. It is a rule that exists to avoid injustice.

(e) the power is available where the proposed amendment is one upon which no real difference of opinion could exist. Such availability is to be distinguished from circumstances where the amendment is a matter of controversy or the mistake is the consequence of a deliberate decision. It is also to be distinguished from an order setting aside an order;

(f) it is 'well settled' that the rule is not confined to giving effect to the intention of the judge at the time the original order was made - it extends to:

i. the intention which the court would have had, but for the failure that caused the accidental slip or omission;

ii. permit the correction of an order where the omission results from the inadvertence of a party's legal representative;

(h) when an order is made under the slip rule it corrects the earlier order (that was made within time); the later order has effect of correcting the earlier order and so 'speaks' - that is, operates -from the date of the earlier order. The effect of the order is to eradicate the mistake or error in the original order;"[9]

[40] When the Full Bench decision in University of Western Sydney v NTEU is considered against the case law in relation to the 'slip rule' it is easy to understand that the Full Bench used s.602 in order to avoid a significant injustice from occurring (an unintended windfall gain for some employees which would have cost the University millions of dollars over the life of the Agreement. (principle (a) from the decision of Kelly J) It is also clear that the Full Bench decision addressed the principle (e) as identified by Kelly J in that "the proposed amendment is one upon which no real difference of opinion could exist."

[41] Having regard to the decision of McKenna C and of the Full Bench on appeal and to the case law on the 'slip rule' in the present matter s.602 would not be available and could not be used to change the nominal expiry date in the Agreement or in the decision to approve the Agreement.

[42] The present matter is very like the matter before McKenna C and very unlike the matter before the Full Bench on appeal from McKenna C's decision. In the present matter the application seeks to change the Agreement so that it becomes a very different thing from what was originally put to employees. There is no obvious error in the decision of the Commission to approve the Agreement the error was caused by the Applicant in producing the final version of the Agreement. Unlike the matter before the Full Bench on appeal from McKenna C's decision there is a lack of evidence in relation to the matters that need to be addressed in an application under s.602.In particular there is no evidence of injustice flowing from the Agreement as it stands or from the decision to approve the Agreement as it stands. Further there is no significant impact on the Applicant if the error is not corrected.

[43] In the present matter the "error" of the Applicant in inserting into clause 5 a nominal expiry date of 24 October 2017 is an "error" which the Applicant adopted and relied on when making an application to the Commission for approval of the Agreement. The Applicant's Form F17 - Employer's statutory declaration in support of an application for approval of an enterprise agreement clearly answered question 2.1: What is the nominal expiry date of the agreement? Provide clause number in the agreement that specifies the date. - by identifying clause 5.1 and by identifying the expiry date as 24 October 2017.

[44] Question 2.1 in the Form F17 draws attention to s.186(5) of the Act which requires that the Commission be satisfied that an enterprise agreement specifies a date as its nominal expiry date and that the specified date is not more than 4 years after the date on which the Commission approves the agreement. In answering question 2.1 on the Form F17 the Applicant is providing a sworn declaration that the relevant enterprise agreement has a nominal expiry date and that the date specified in the Form F17 is true and accurate. The Form F17 statutory declaration in support of the Agreement was made by Ms Tappers on behalf of the Applicant.

[45] There is a matter which is referred to in the Full Bench decision in University of Western Sydney v NTEU which requires comment. One of the fact about which the Full Bench was satisfied was that "if all those employees whose terms and conditions were potentially affected by the deletion, were to have voted against the 2014 Agreement, it would still have been approved by a majority." Clearly the Full Bench considered it necessary to have regard to whether or not the agreement would have been made by the employees if the corrected agreement had been put to the employees in the first instance.

[46] There is nothing in the language of either s.217 or s.602 which requires the Commission to consider whether the enterprise agreement as amended to remove an ambiguity or uncertainty or as amended to correct any obvious error, defect or irregularity would have been able to be approved or would have been approved by the Commission if the amendments were made before the agreement was voted on.

[47] Whilst both s.217 and s.602 are discretionary powers available to the Commission, it would appear to be consistent with the scheme of the Act that the discretion should be exercised in a manner where the result (the amended agreement) is both capable of being approved as a new enterprise agreement and would have been approved by the employees. Whilst both s.217 and s.602 can result in the Commission amending the terms of an enterprise agreement, the Act provides a far more direct means of amending or varying an enterprise agreement and that is Subdivision A of Division 7 of Part 2-4 of the Act comprising s.207 - s.216. Importantly, s.211(1)(a) requires that the Commission must approve the variation if the Commission is satisfied that had an application been made under s.185 to approve the agreement as amended that amended agreement would have been approved under s.186. In other words s.211 requires the Commission to effectively deal with an application to vary an agreement as if it was an application to approve a new agreement.

[48] The very fact that Parliament has provided in Subdivision A of Division 7 of Part 2-4 of the Act for a process for variation of an agreement which is less burdensome than the process for approval of an enterprise agreement (there is no requirement to issue a notice of employee representational rights) strongly suggests that the correct approach to using s.602 is that it be used cautiously.

[49] In the present matter not only is there no ambiguity or uncertainty in the Agreement in relation to the nominal expiry date but there is no obvious error, defect or irregularity which would be capable of being corrected under s.602.

[50] The application in this matter must be dismissed.

[51] The Applicant is of course entitled to use the process for variation of an enterprise agreement set out in Subdivision A of Division 7 of Part 2-4 of the Act comprising ss.207 - 216.

[1] [2014] FWCA 4406 at [3].

[2] [2017] FWCFB 3005.

[3] [2014] FWCFB 7447 at [29].

[4] [2013] FWCA 4238.

[5] [2015] FWC 4793.

[6] [2015] FWCFB 6846.

[7] [2017] FCCA 639.

[8] [2003] AIRC 1137.

[9] [2017] FCCA 639 at para 189.

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