When the wrong version of an EA is approved by the FWC

In brief 2 min read

There is no simple fix where an employer submits, and the FWC approves, the wrong version of an enterprise agreement¹. The employer will need to appeal the decision approving the enterprise agreement, submit the agreement to another vote and apply again to have the agreement approved.

How does it affect you?

Employers should ensure that the correct version of the enterprise agreement is submitted to the FWC for approval.

Background

An employer mistakenly submitted to the FWC an early draft of an enterprise agreement for approval. The FWC approved that draft version. The employer then realised the mistake and applied to the FWC to substitute the final version for the one that was approved. The employer relied on section 602(1) of the Fair Work Act 2009 (Cth) (FW Act), which enables the FWC to correct any 'obvious error, defect or irregularity' in relation to a decision made by it.

Decision

On a previous occasion where a similar mistake occurred², Deputy President Beaumont agreed to substitute the correct version of the EA for the wrong version that was approved by the FWC. However, in the recent decision, Commissioner Hunt did not take the same approach. In Commissioner Hunt's view, the error could only be corrected by appealing the initial decision, submitting the agreement to another vote and making another application for the approval of the agreement. In Commissioner Hunt's view, the FWC could not substitute the final version of the EA for the version that was approved. This was because:

• Section 603(3) of the FW Act prohibits the FWC from varying or revoking a decision that deals with enterprise agreements. Substituting another version of the agreement for the version that was approved would result in a variation or revocation of a FWC decision, contravening this provision.
• Agreeing to the employer's request would require the FWC to reconsider the 'better off overall test', but this was not an exercise contemplated by the provision in the FW Act that enabled the FWC to correct an error.