Advantaged Care Pty Ltd [2020] FWC 5612

1 Fair Work Act 2009 s.602 - Application to correct obvious error(s) etc. in relation to FWC’s decision Advantaged Care Pty Ltd (ADM2020/14) Aged care industry DEPUTY PRESIDENT MASSON MELBOURNE, 4 NOVEMBER 2020 Application to correct obvious error(s) Introduction and Background [1] An application has been made by Advantaged Care Pty Ltd (the Applicant) for the correction of an alleged obvious error in an enterprise agreement known as the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020 – 2023 (the Agreement). The application was made pursuant to s. 602 of the Fair Work Act 2009 (the Act). The Health Services Union (the HSU) is covered by the Agreement and opposes the application. [2] The Applicant and the HSU have been asked to address a preliminary question going to the power of the Fair Work Commission (the Commission) to correct an alleged obvious error in the Agreement. Before turning to the preliminary jurisdictional question, on which the parties have agreed, it is useful to briefly set out the background to the application. [3] Bargaining for the Agreement was initiated in September 2019 and a notice of employee representational rights (the NERR) was issued to employees on 16 September 2019. Bargaining then proceeded from October to December 2019 during which period the HSU was a bargaining representative at all times. [4] Towards the conclusion of bargaining an issue arose between the parties as to the appropriate penalty payments to apply to casual employees engaged on weekend work. The issue was raised following an Award Determination1 (the Award Determination) made by a Full Bench on 18 October 2019 in respect of the Aged Care Award 20102 as part of the Commission’s 4 yearly review of modern awards. The Award Determination, amongst other matters, provided for an increase in penalty rates for casual employees working on weekends and on public holidays and clarified that those increased penalty rates applied in substitution of and not cumulative upon the casual loading. The changes were stated to commence operation from 1 July 2020. 1 PR713505 2 MA000018 [2020] FWC 5612 DECISION -- 1 of 14 -- [2020] FWC 5612 2 [5] Following an exchange of various correspondence between the parties in early December 2019 in relation to the weekend penalty rate issue, the terms of the Agreement in respect of clause 17(d) were finalised by the Applicant, exchanged with the HSU and then included in the draft agreement in the following terms; “(d) For all ordinary hours completed on weekends, that is a Saturday or Sunday, in addition to the Base Rate of Pay, all employees shall be paid as follows: All hours completed on a Saturday – 50% penalty rate All hours completed on a Sunday – 75% penalty rate From the first full pay period on or after 1 July 2020, all employees shall be paid as follows: All hours completed on a Saturday – 75% penalty rate All hours completed on a Sunday – 100% penalty rate The penalty rates for Saturdays and Sundays are paid to Employees in substitution of any casual loading if applicable and in substitution of any shift penalties referred to in subclause (ii) above.” [6] On 9 December 2020 those employees who would be covered by the Agreement were notified of the ballot to be conducted to approve the Agreement. The ballot results for the Agreement were declared on 19 December 2020, revealing that a majority of employees who had participated in the ballot, voted in favour of the proposed Agreement. The application for approval of the Agreement, which is a single enterprise agreement, was lodged with the Commission on 23 December 2019 and was approved on the 28 February 20203 (the Approval Decision) pursuant to s.186 of the Act. [7] The Applicant contends, for reasons that are unnecessary for me to detail at this stage, that there was an obvious error in the drafting of the Agreement in that the term “casual” was omitted in clause 17(d) when describing those employees that would be entitled to receive the higher weekend penalty rates that apply from 1 July 2020. The effect of the alleged error is to extend the benefit of the increased weekend penalty payments to all employees when the claimed intention of the Applicant was to confine the operative effect of the increased penalty payments to only casual employees. It now seeks by its application to amend clause 17(d) of the Agreement by inserting the word “casual” into the clause in the manner highlighted below; “(d) ………………… From the first full pay period on or after 1 July 2020, all casual Employees shall be paid as follows; 3 [2020] FWCA 1108 -- 2 of 14 -- [2020] FWC 5612 3 All hours completed on a Saturday – 75% penalty rate All hours completed on a Sunday – 100% penalty rate The penalty rates for Saturdays and Sundays are paid to Employees in substitution of any casual loading if applicable and in substitution of any shift penalties referred to in subclause (ii) above.” [8] The proposed correction if made, would confine the operative effect of the increased weekend penalty rates to casual employees only. The HSU do not concede the alleged error as contended by the Applicant. It is however unnecessary at this preliminary stage for me to determine whether there is an ‘obvious error’ in the Agreement. Question to be answered in respect of the Commission’s power to correct an obvious error [9] On 9 October 2020 the Commission issued directions to the parties for the filing of material in respect of the following agreed question; “If the Commission were satisfied that there is an obvious error, defect or irregularity in cl 17(d) of the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020 – 2023 (which is not conceded), would the Commission have the power to ‘correct’ the clause by way of amending the Agreement in the terms sought in part 2.1 of the application pursuant to s 602 of the Fair Work Act 2009 (Cth)?” [10] Both parties filed submissions in accordance with the directions and the matter was then listed for hearing on 30 October 2020. Mr B Gee of FCB Law was granted permission to appear on behalf of the Applicant at the hearing pursuant to s. 596 of the Act while the HSU were represented by its Industrial Officer, Mr L Maroney. Relevant Principles [11] 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 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: -- 3 of 14 -- [2020] FWC 5612 4 (a) on its own initiative; or (b) on application.” [12] The Explanatory Memorandum to the Fair Work Bill 2008 outlined the intention of s. 602 of the Act, at paragraph 2316: “Clause 602 - Correcting obvious errors etc. in relation to FWA’s decisions 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]). This clause does not apply, however, to a modern award or a national minimum wage order. (Clauses 160 and 296 deal with corrections to modern awards and national minimum wage orders.)” [13] Also relevant is s. 598 of the Act which provides examples of what may be recognised as a Decision of the Commission for the purposes of s. 602. Section 598 of the Act provides as follows: “598 Decisions of the FWC (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.” (my emphasis added) [14] Relevantly, the Explanatory Memorandum to the Fair Work Bill 2008 outlined the intention of ss. 598(1) & (2) in the following terms; -- 4 of 14 -- [2020] FWC 5612 5 “2301. Subclause 598(1) defines a decision of FWA in broad terms as including any decision of FWA however described. The note following this subclause provides some examples of actions of FWA that would be considered to be decisions of FWA. It is intended that, for the purposes of this Part, decisions of FWA should include all of the decisions that FWA makes, both substantive and procedural. ……………… 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. ……………” [15] In Re Timber and Allied Industries Award 1999,4 Justice Munro of the Australian Industrial Relations Commission dealt with the equivalent provision to s. 602 in the Workplace Relations Act 1996 and stated: “[29] This matter effectively turns upon the application of the colloquially known, “slip and error rule”. The “slip and error rule” enables a Court to make amendments where unintentional errors have occurred. Neither the applicant nor respondent parties directed my attention to this rule, although with paragraph 111(1)(q) it is the foundation of the Commission’s power to issue a Correction Order. The merits of the matter may properly be confined to application or non-application of the rule to the exercise of determinative power called for in this Commission proceeding. [30] As stated by Einstein J. in a recent judgement: “A Court possesses an inherent power to correct mistakes in its orders arising from inadvertence: Milson v Carter [1893] AC 638 at 640 per Lord Hobhouse, approved in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at 594. A power to a like effect is to be found in Part 20, Rule 10(1) of the Supreme Court Rules, which reads – Where there is a clerical mistake or an error arising from an accidental slip or omission in a minute of a judgment or order or in a certificate, the Court on the application or any party or of its own motion, may, at any time, correct the mistake or omission.” 4 [2003] AIRC 1137 at [29]-[30] -- 5 of 14 -- [2020] FWC 5612 6 Paragraph 111(1)(q) of the Act may be taken to be the counterpart of that power in the Commission.” [16] In RotoMetrics Australia v AMWU (RotoMetrics) a Full Bench dealt with the powers available under s. 602 under the Act in dealing with an appeal against a decision of the Commission where an agreement approval included a note that the AMWU was covered by the Agreement when in fact the AMWU had not complied with s. 183 of the Act. The Full Bench relevantly said as follows; [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). (footnotes omitted) Applicant submissions [17] The Applicant submits that s. 602 confers power on the Commission to ‘correct or amend any obvious error, defect or irregularity’ in relation to a decision. It says that Note 1 in s. 602 of the Act makes clear that if as a result of a decision, an enterprise agreement is made, the power to amend or correct extends to the instrument, that being the enterprise agreement. The note repeats the capacity conferred by s. 598(2) according to the Applicant. [18] The Applicant further submits that the term instrument is used throughout the Act and is intended by both s. 602 and s. 598(2) to include enterprise agreements. The Applicant refers to various references in the Act to the term instrument in the context of enterprise agreements including s. 12, s. 40, s. 312, s. 354(1)(b) and s. 768AR. The Applicant also relies on a number of Federal Court decisions in which the court has characterised enterprise agreements in obiter as variously ‘instruments’, industrial instruments’ and ‘workplace instruments.’ -- 6 of 14 -- [2020] FWC 5612 7 [19] The Applicant says that the power conferred by s. 602 applies not only to decisions of the Commission but also in respect of instruments made by the Commission. It follows that the Agreement, having been approved in a decision of the Commission, can be corrected or amended in respect of an ‘obvious error, defect or irregularity’. In support of this submission the Applicant refers to a number of decisions of the Commission where the power in s. 602 has been applied to correct an error in the text of an enterprise agreement that had been previously approved. Those decisions include;  In University of Western Sydney v National Tertiary Education Union5 (UWS) a Full Bench overturned an earlier decision6 of Cmr McKenna who at first instance found that the Commission did not have the power to determine or change the terms of an enterprise agreement.7  In Hospitality Performance Leaders Pty Ltd t/a Nu Force Security Group8 (Nu Force) Deputy President Mansini made an order to correct an error in relation to an undertaking and the inclusion of an incorrect table of rates provided by the Company. In her decision the Deputy President referred to Schweppes Australia Pty Ltd United Voice – Victoria Branch9 (Schweppes) in which a Full Bench corrected an error in the text of a workplace determination.  In Spotless Facility Services Pty Ltd10 (Spotless) Commissioner Cambridge made an order to correct a typographical error in an enterprise agreement. The error was of substance as it referred to an hourly divisor in clause 17.2 of the agreement of 1/35th in error rather than the correct divisor of 1/38th.  In Independent Education Union of Australia11 (IEU) Commissioner Johns made an order to correct an error contained in clause 4.1.3 of the agreement that dealt with the number of pupil free days which were expressed in error as per term rather than per year. In his decision the Commissioner specifically referred to the Note in s. 602(1) and the word instrument in the context of correcting an enterprise agreement.  In Confoil Pty Ltd12 (Confoil) Commissioner McKinnon made an order to correct an error in relation to a decision to vary the Confoil Pty Ltd Enterprise Agreement when the incorrect version of the Agreement was supplied to the Commission by a representative. HSU submissions 5 [2015] FWCFB 6846 6 [2015 FWC 4793 7 Ibid at [15] 8 [2020] FWC 1825 9 [2012] FWAFB 7858 10 [2018] FWC 5517 11 [2018] FWCA 2306 12 [2019] FWC 5110 -- 7 of 14 -- [2020] FWC 5612 8 [20] The HSU submits that the Explanatory Memorandum to the Fair Work Bill 2008 makes clear that s. 602 is intended to be the statutory analogue of the ‘slip rule’ used by superior courts.13 That power of the courts is however, according to the HSU, limited to orders and judgements. The equivalent of this limitation in s. 602 is that the power is exercisable by the Commission only in respect of its decisions. The principles to be applied by the Commission were summarised in Re Timber and Allied Industries Award 1999 by Munro J and adopted by a Full Bench of the Commission as applicable to s. 602 of the Act.14 [21] The HSU rejects the Applicant’s submission that a decision of the Commission to approve an agreement amounts to a decision to ‘make’ the agreement. The HSU submit that an agreement is ‘made’ at the time a valid majority of employees who cast a valid vote approve the agreement. Further, the legislative scheme of having agreements ‘made’ by the parties and given force by way of a separate process is a feature of the current Act as well as the predecessor legislation. This supports the HSU submission that the making of an agreement between an employer and its employees is not a decision of the Commission within the meaning of ss. 598 & 602 of the Act. [22] As regards the authorities referred to by the Applicant the HSU either distinguish or dismiss as plainly wrong those various authorities and refer to the following more relevant authorities and say as follows;  In Valmet Pty Ltd v AMWU15 (Valmet) Commissioner Ryan considered that the power in s. 602 could not be used to correct a term of an enterprise agreement and in doing so noted that the Full Bench in UWS ‘did not comment or criticise the decision at first instance in relation to McKenna C’s analysis of the law.’16  In Cragcorp Pty Ltd17 (Cragcorp) Commissioner Hunt considered that ‘parliament made clear that in the event an agreement is approved, the decision to approve is protected other than by way of obtaining leave to appeal’18 and as a consequence the Commission did not have the power to make a correction under s. 602 with the effect of amending the agreement it had approved.  In Grabovsky v United Protestant Association of NSW Ltd19 (Grabovsky) a Full Bench described the power under s. 602 of the Act as ‘limited’20 and only arises in circumstances where a decision fails to conform with the intention of the decision maker.21 Consideration 13 Flint v Richard Busuttil & Company Pty Ltd (2013) 216 FCR 375 at [26] 14 RotoMetrics Australia Pty Ltd V Australian Manufacturing Workers’ Union (2011) 212 IR 373 15 [2017] FWC 4535 16 Ibid at [34] 17 [2020] FWC 2830 18 Ibid at [27] 19 [2018] FWCFB 5891 20 Ibid at [15] 21 Ibid at [16] -- 8 of 14 -- [2020] FWC 5612 9 [23] The first thing to be said is that the Applicant does not contend that the Approval Decision contained an error but rather the approved Agreement contained an obvious error as described above at [7] and that such error was capable of correction pursuant to s. 602 of the Act. [24] The contention that the error in the Agreement is capable of correction under s. 602 rests on the Applicant’s assertion that an enterprise agreement is an instrument made by the Commission. The Applicant further submits that it is abundantly clear from reading s. 598 and s. 602 together that the Commission has the power to correct an error in an enterprise agreement that has been approved as it is an instrument made by the Commission. [25] Section 602 makes clear that the power to correct an obvious error in a decision extends to an instrument made by such decision of the Commission. So much is clear by Note 1 in s. 602 which states that an instrument made by the Commission can be corrected pursuant to s. 602. I accept without reservation that an enterprise agreement is an instrument under the Act. [26] The fact that an enterprise agreement is an instrument does not of itself confer power to the Commission to correct an alleged error in an enterprise agreement. It is only if the Commission’s decision to approve an enterprise agreement has the effect of making an instrument that the jurisdiction of the Commission to correct an obvious error in the enterprise agreement arises. Two elements are therefore necessary in order to enliven the Commission’s jurisdiction to exercise its discretion to correct an obvious error in an instrument. Firstly, a decision is required and secondly an instrument must have been made by that decision. [27] It follows from the above that in order to answer the question posed I must determine whether an enterprise agreement approved pursuant to s. 186 of the Act, is an instrument made by the Commission. I think not for the following reasons. [28] In considering whether an enterprise agreement is an instrument made by the Commission it is useful to firstly consider the meaning and use of the term instrument in the Act. While the term instrument is not defined in the Act, it is a term that is used throughout the Act. See for example s. 113(2)(b) where a list of instruments includes; enterprise agreements, preserved state agreements, workplace determinations, pre-reform certified agreements, pre-reform AWA, section 170MX awards and old IR agreements. See also s. 12 of the Act where the term fair work instrument is defined to mean; a modern award, an enterprise agreement, a workplace determination or an FWC order. As further examples, s 178 of the Act refers to an instrument of appointment with respect to appointment of bargaining representatives and s. 266 refers to a termination of industrial action instrument. It is clear that the term instrument refers to various documents that regulate terms and conditions of employment under the Act and also includes orders of the Commission. [29] It is apparent from reviewing the various types of instruments to which I have referred above that there is a distinction to be drawn between instruments made by the Commission and instruments given effect by the Commission. The former, such as modern awards, workplace determinations and orders of the Commission, are the product of a determinative process through which the Commission considers and decides the terms of those instruments. -- 9 of 14 -- [2020] FWC 5612 10 In doing so they may consider the views of the affected or interested parties. In circumstances where the Commission determines the terms of an instrument that is the subject of a decision, there is clear statutory logic to the power of s. 602 extending to an ability to correct the instrument where obvious error has arisen. [30] By contrast an enterprise agreement’s terms are not determined by the Commission although the terms of the enterprise agreement may be overridden by statutory effect22 or modified by acceptance by the Commission of undertakings to cure a deficiency.23 The process of approval of an enterprise agreement is entirely different in character to the process that leads for example to the making of an award or workplace determination. Part 2-4 of the Act provides a scheme for the making of enterprise agreement between an employer/s, their employees who are to be covered by the proposed agreement and bargaining representatives and occurs prior to an agreement approval application being made to the Commission. This is made clear by ss. 182 and 185 of the Act which state as follows; “182 When an enterprise agreement is made Single-enterprise agreement that is not a greenfields agreement (1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement. Multi-enterprise agreement that is not a greenfields agreement (2) If: (a) a proposed enterprise agreement is a multi-enterprise agreement; and (b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and (c) those employees have voted on whether or not to approve the agreement; and (d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement; the agreement is made immediately after the end of the voting process referred to in subsection 181(1). Greenfields agreement 22 See for example s 55 where the interaction of the National Employment Standards (NES) and modern awards and enterprise agreements are described 23 Section 190 -- 10 of 14 -- [2020] FWC 5612 11 (3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement). ……………………… 185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement Application for approval (1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement. ………….” [31] It is clear from the plain meaning of the text of the Act that the making of an agreement precedes an application to the Commission and is a process undertaken by the parties to the agreement. An agreement other than a greenfields agreement is made when a majority of employees who cast a valid vote approve the agreement. The above is reinforced by the fact that the role of the Commission is a separate and subsequent process to the making of an enterprise agreement by the parties. The key provisions of the Act that set out the Commission’s power to approve enterprise agreements is found at ss. 186 & 187. [32] As an enterprise agreement is made by the parties when a valid majority of employees vote to approve it, it follows in my view that it cannot be an instrument made by the Commission. Consequently, there is no power to correct an obvious error in an enterprise agreement pursuant to s. 602. It matters not whether the obvious error in an enterprise agreement is acknowledged and agreed between the parties or strongly contested. Nor does it matter whether the error is significant or inconsequential. There is in my view no power regardless of the circumstances, to correct an obvious error in an enterprise agreement under s. 602 for the simple reason that an enterprise agreement is not an instrument made by the Commission. It is an instrument made by the parties to it. The role of the Commission is confined to the approval or dismissal of an enterprise agreement application, and not to the making of the instrument. [33] My view as to the constraints on the power conferred by s. 602 in relation to enterprise agreements is fortified by the fact that there are alternate means by which parties are able to vary the terms of an enterprise agreement. Where there is uncertainty or ambiguity in the terms of an enterprise agreement, an employer, employee/s or employee organisation covered by the agreement may apply to vary the enterprise agreement to remove the uncertainty or ambiguity.24 Further, an employer covered by an enterprise agreement may also request affected employees to approve a variation to the terms of the enterprise agreement25 and then 24 Section 217 of Act 25 Section 208 of Act -- 11 of 14 -- [2020] FWC 5612 12 if approved by a valid majority of employees make an application to the Commission for approval of the variation.26 [34] I now turn to deal briefly with some authorities to which I have been referred by the parties in support of their respective positions. [35] Turning firstly to Schweppes, the decision in my view does not stand as authority for the proposition that the Commission has the power to correct an error in an enterprise agreement. Schweppes was a provisional decision of the Full Bench in dealing with a workplace determination. The Full Bench made some observations in the decision about the power to correct an error pursuant to s. 602 in the context of a controversy between the parties in respect of ‘agreed matters’ that were intended to be incorporated into the workplace determination.27 Importantly, the Full Bench observations were made in advance of a decision having been made in respect of the workplace determination. In any case, it is apparent that a workplace determination is an instrument made by the Commission as s. 266(1) makes abundantly clear; “266 When the FWC must make an industrial action related workplace determination Industrial action related workplace determination (1) If: (a) a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and (b) the post-industrial action negotiating period ends; and (c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement; the FWC must make a determination (an industrial action related workplace determination) as quickly as possible after the end of that period. Note: The FWC must be constituted by a Full Bench to make an industrial action related workplace determination (see subsection 616(4)). ………………” [36] In UWS, a Full Bench overturned a decision made at first instance in which the Commissioner declined to exercise power under s. 602 to correct an error in an enterprise agreement as she was of the view that the content of an enterprise agreement was not capable of correction through the combined operation of ss 598 and 602.28 The error, which was 26 Section 210 of Act 27 Schweppes at [348]-[350] 28 University of Western Sydney [2015] 4793 at [16] -- 12 of 14 -- [2020] FWC 5612 13 agreed between the parties and which was the subject of the s. 602 application, involved the inadvertent deletion of a footnote in the 2014 Agreement which had significant and unintended financial consequences for the university. In overturning the Commissioner’s decision, the Full Bench accepted new evidence and found that the adverse financial outcome for UWS arising from the error, if not corrected, enlivened the public interest. The Full Bench set aside the Commissioner’s decision and corrected the error in the 2014 Agreement. [37] In overturning the Commissioner’s decision, the Full Bench did not criticise the Commissioner’s analysis of the law or engage with the limits on the power of the Commission use of s. 602 to correct an obvious error in an enterprise agreement. The Applicant submits that UWS stands as authority for s. 602 to be used to correct the terms of an enterprise agreement attended by obvious error. However, the absence of any rationale expressed by the Full Bench in UWS, beyond the adverse financial impact on UWS if the error were not corrected, provides an unsafe authority on which to proceed in the present matter before me. To the extent that UWS is authority for the power of the Commission to use s. 602 to correct an obvious error in an enterprise agreement I decline to follow it. [38] In NuForce the Deputy President was concerned with an error in an undertaking that she had accepted in her earlier consideration of whether to approve an enterprise agreement before her. While an undertaking is taken to be a term of an approved enterprise agreement the circumstances of the correction of an error in an undertaking may arguably be distinguished from that of correcting obvious errors in the terms of an enterprise agreement made by the parties. To the extent that the Deputy President relied on Schweppes in observing that the power in s. 602 extends to obvious errors of the parties, that observation is correct in my view in respect of errors reflected in instruments made by the Commission. In the present matter before me the instrument was not made by the Commission. [39] With respect to Spotless and IEU, in both matters the members proceeded on a common understanding of the parties that the power to correct an enterprise agreement existed under s 602. For reasons outlined in this decision I respectfully differ from my colleagues as to the power that s. 602 confers in respect of correcting errors in an enterprise agreement. Conclusion [40] It follows from the above that while the Agreement which is subject to an application pursuant to s. 602 is an instrument for the purposes of the Act, it was not an instrument made by the Commission. Rather, it was given effect by the Approval Decision. It therefore follows that it is impermissible for the Commission to correct the alleged error in the Agreement pursuant to s. 602 of the Act and that the principles outlined in RotoMetric do not arise for consideration. [41] As previously stated above, the following preliminary jurisdictional question is required to be answered by me; “If the Commission were satisfied that there is an obvious error, defect or irregularity in cl 17(d) of the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020 – 2023 (which is not conceded), would the Commission have the power to ‘correct’ the -- 13 of 14 -- [2020] FWC 5612 14 clause by way of amending the Agreement in the terms sought in part 2.1 of the application pursuant to s 602 of the Fair Work Act 2009 (Cth)?” [42] Having regard to the reasons outlined above the answer to the question is “No”. [43] As a consequence, the application made to correct the Agreement pursuant to s. 602 must be dismissed. DEPUTY PRESIDENT Appearances: Mr B. Gee for the Applicant Mr L Maroney on behalf of the HSU. Hearing details: 2020 Melbourne 30 October Printed by authority of the Commonwealth Government Printer <AE507275 PR723730 > -- 14 of 14 --