1
Fair Work Act 2009
s.602— Correcting obvious errors etc. in relation to the FWC's decisions
Inna Grabovsky
v
United Protestant Association of NSW Ltd T/A UPA
(C2018/3178)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT ASBURY
COMMISSIONER HAMPTON MELBOURNE, 26 SEPTEMBER 2018
Application to vary decision [2018] FWCFB 4362 of the Full Bench at Sydney on 31 July
2018 in matter number C2018/3178.
Introduction
[1] On 17 August 2018 the Commission received an application dated 16 August 2018
(the Application) from Mrs Inna Grabovsky (the Applicant) to ‘correct obvious errors’ in the
Full Bench decision [2018] FWCFB 4362 (the Decision). The Application was made under
s.602 of the Fair Work Act 2009 (Cth) (the Act).
[2] The Decision refused the Applicant permission to appeal against two decisions of
Commissioner Johns granting permission for the United Protestant Association of NSW Ltd
T/A UPA (UPA) to be legally represented pursuant to s.596 of the Act in matters C2017/7037
and AG2017/5218. The permission to appeal hearing was held on 25 July 2018.
The Application
[3] The Application states:
‘The Applicant applies to correct erroneous information contained in Fair Work Commission’s
decision [2018] FWCFB 4362 (“the Decision”) that had been used for arriving to a decision.
The Applicant does not apply for correction of a deliberate decision of Fair Work
Commission. All conclusions made by the Full Bench for the matter C2018/3178, are left as
they currently appear in the Decision regardless of their accuracy or relevance.
This application is not designed to establish whether the errors are the result of the lack of due
regard to the facts and applicable laws, misunderstanding of evidence and submissions, or the
deliberate act of deviation from the truth.
[2018] FWCFB 5891
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 5891
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However, refusal to correct obvious errors will constitute proof that errors are the result of
deliberate action and the Decision would be deemed a fraudulent official document fabricated
for the purpose of perverting the course of justice.’ (emphasis omitted)
[4] The Application identifies a number of ‘errors’ in the Decision of which correction is
sought under s.602. These include but are not limited to:
the Decision indicates that the hearing on 25 July 2018 dealt with both permission to
appeal and the appeal proper. In fact, the application was for permission to appeal
only and the arguments made by the Applicant at the hearing were confined
accordingly. The Applicant contends that any paragraphs which indicate the Full
Bench heard an appeal, as distinct from an application for permission to appeal,
should be corrected, including [1], [5] and the heading on page 5 of the Decision;
the Decision refers to matters which would only be relevant to the appeal proper, had
permission to appeal been granted, which are irrelevant to the Applicant’s
permission to appeal application, including at [10], [11], [16] to [18], [19] and
[20]. It is contended that, in some instances, this makes the Decision difficult to read
and understand, contrary to the requirement in s.601(3) of the Act. The Application
seeks that this material be removed from the Decision;
the Decision contains information that is misleading as to: how long after
Commissioner Johns’ decision to allow the UPA to be legally represented Mr
Grabovksy purported to withdraw consent for the UPA to be legally represented; and
whether the Applicant opposed the UPA’s application for permission, at [19], [20]
and [47];
the Decision refers to matters which are irrelevant to both the permission to appeal
application and the appeal proper, including at [38], [50] to [52] and [53], which the
Applicant contends should be removed from the Decision;
the Decision incorrectly states a number of legal principles, which the Applicant
seeks be removed from the Decision or corrected, including:
at [4], an appeal is an appeal by way of rehearing and the Commission’s
powers on appeal are only exercisable if there is error on the part of the
primary decision-maker. The Applicant contends that the authority relied on
by the Full Bench in support of these principles is inapplicable to this matter;
and
at [37], a decision relating to permission to be represented is an interlocutory
decision.
the Decision does not wholly articulate the Applicant’s submissions relating to each
of the permission to appeal grounds, including at [22], [41] to [44] and [48]. Further,
the Decision paraphrases the Applicant’s submissions in such a way as to
misrepresent them, and diminish their weight. The Application seeks that the
Decision be corrected to more accurately reflect the submissions that were put by the
Applicant at the hearing;
the Decision suggests, at [41], that the Applicant referred to paragraph [16] of
Commissioner Johns’ decision to establish the existence of permission to appeal
Ground 1. In fact, the Applicant only referred to [16] in order to answer a question
from the President;
[2018] FWCFB 5891
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the matters referred to in the Decision under the heading ‘Ground 2’ were in fact the
Applicant’s evidence in support of the third permission to appeal ground. Likewise,
the matters referred to under the heading ‘Ground 1’ are in fact the evidence the
Applicant sought to rely on to establish the existence of permission to appeal Ground
1. The Application seeks that the Decision be corrected to clarify this;
the Decision misrepresents the meaning of s.596 of the Act by suggesting, at [35],
that the Commission may exercise discretion in establishing the existence of one or
more of the circumstances set out in s.596(2)(a) to (c). The Application seeks that
this be corrected to make clear the Commission has no discretion in this regard; and
the Decision ‘grossly diminishes the seriousness’ of Commissioner Johns’ statement
referred to at [54], which the Applicant contends is the ‘cornerstone’ of the
Commissioner’s decisions. The Application does not, however, seek any correction
to [54].
[5] The remaining ‘errors’ set out in the Application are of a similar nature to those
summarised above.
[6] On 24 August 2018, the Commission advised the UPA of the Application and invited
them to provide any submissions they wished to make in response to the Application by 14
September 2018. The Applicant was also invited to provide any further submissions in
relation to the Application by 14 September 2018. The parties were advised that the
Commission proposed to deal with the Application on the papers and invited them to advise if
they objected to this course.
[7] No submissions were received from the UPA. On 3 September 2018 the Commission
received further submissions from the Applicant, (dated 31 August 2018), in which the
Applicant contends that ‘the Applicant and Members of the Full Bench are the only legitimate
parties to the proceeding that have a right of audience including submissions’, on this basis it
was submitted that the UPA had no right to be heard on the Application. The Applicant asks
the Commission to withdraw in writing its invitation for the UPA to make submissions in
relation to the Application.
[8] This proposition is clearly wrong. The UPA is the Respondent in matter C2018/3178
and not, as the Applicant contends, a ‘nominal’ respondent. The UPA’s substantive rights are
affected by the Decision and would be affected by any amendment of the Decision.
Procedural fairness obligations require that they be given an opportunity to make submissions
in respect of the Application. In any event UPA chose not to make any submissions in relation
to the Application.
[9] The Applicant also requested that each Member of the Full Bench (other than the
President) acknowledge receipt of the Applicant’s submissions. This is because the Applicant
‘wants to be absolutely sure that each Member…understands that they have been given the
opportunity to revisit and to correct the reasons for Decision’. We note that as a matter of
course, the Applicant’s submissions have been provided to each member of the Full Bench.
[10] In the Application the Applicant sought a stay of the Decision, and renewed claims for
a stay of decisions [2018] FWC 2920 and [2018] FWC 2751, until the ‘mistakes’ are
corrected.
[2018] FWCFB 5891
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[11] The Act only provides for the Commission to grant a stay of a decision if hearing an
appeal from, or conducting a review of, a decision under ss.604 or 605 of the Act (s.606). As
the Application is not made under either of these sections, the Act does not empower the
Commission to stay the decisions pending the determination of the Application. In any event,
leave to appeal was refused in each case and there is no basis for a stay to be considered. Nor
is there any proper basis to consider a stay of our earlier Decision.
[12] Neither party objected to the Application being determined on the papers.
Consideration
[13] Section 602 provides:
‘602 Correcting obvious errors etc. in relation to the FWC’s decisions
(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in
substance or form) in relation to a decision of the FWC (other than an error, defect or
irregularity in a modern award or national minimum wage order).
Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument
under this section (see subsection 598(2)).
Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and
296.
(2) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.’
[14] In 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,1 a Full Bench of Fair Work Australia said:
‘[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”’.’ (footnotes omitted)
[15] The scope of the power to correct or amend a decision under s.602 is limited; it does
not empower the Commission to reopen or reconsider the correctness of a decision made or to
vary a decision in light of subsequent circumstances. It is intended to avoid injustice by
1 [2011] FWAFB 7214.
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7214.htm
[2018] FWCFB 5891
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permitting the correction of inadvertent mistakes. The limited nature of the power in s.602
may be contrasted with the broader power to vary or revoke a decision pursuant to s.603.2
[16] The Full Bench has read and considered all of the material in the Application and
submissions in reaching its decision. We are not satisfied that any of the purported errors
identified by the Applicant resulted from an unintentional omission in the Decision or that the
Decision fails to conform with the intention of the Full Bench. There is no prospect that any
of the ‘corrections’ sought would have been made if the issue had been mentioned during the
proceedings. Nor is this a situation where injustice will result if the amendments sought by
the Applicant are not made.
[17] If the Applicant is dissatisfied with the Decision and wishes to challenge it, the proper
course is for the Applicant to apply for judicial review of the Decision.
[18] The Application is therefore dismissed.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR700633
Written submissions:
Applicant, 31 August 2018
Applicant, 16 August 2018
2 Annual Wage Review 2016–17, [2018] FWCFB 2 at [37].
https://www.fwc.gov.au/documents/sites/wagereview2017/decisions/2018fwcfb2.pdf
