[2018] FWCFB 6928
The attached document replaces the document previously issued with the above code on 30
November 2018.
The medium neutral citation in the header of pages 2-5 has been amended to [2018] FWCFB
6928.
Associate to Vice President Catanzariti
Dated 30 November 2018
1
Fair Work Act 2009
s.602— Correcting obvious errors etc. in relation to the FWC's decisions
Inna Grabovsky
v
United Protestant Association NSW Ltd T/A UPA
(C2018/1708)
VICE PRESIDENT CATANZARITI
COMMISSIONER BISSETT
COMMISSIONER HUNT
SYDNEY, 30 NOVEMBER 2018
Application to vary decision [2018] FWCFB 2474 of the Full Bench at Brisbane on 21 May
2018 in matter number C2018/1708.
Introduction
[1] On 24 September 2018 the Fair Work Commission (Commission) received an
application (the Application) from Mrs Inna Grabovsky (the Applicant) to “correct obvious
errors” in the Full Bench decision [2018] FWCFB 2474 (the Decision). The Application was
made under s.602 of the Fair Work Act 2009 (Cth) (Act).
[2] The Decision refused the Applicant permission to appeal against the decision of
Deputy President Gooley, in which the Deputy President found that exceptional
circumstances existed pursuant to s.366 of the Act, such that an extension of time should be
granted to Mrs Inna Grabovsky to make her general protections application.
The Application
[3] The Application states:
“The Applicant applies to correct erroneous information contained in Fair Work
Commission’s decision [2018] FWCFB 2474 (“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 C2018/1708, 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 deliberate act of deviation from the truth.
[2018] FWCFB 6928
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 6928
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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 omits information about the grounds for appeal as they were submitted
by the Applicant. The Applicant did not apply for an extension of time to file a
general protections application, and in such circumstances, the Commission ought to
make a decision to dismiss the application (e.g. pursuant to ss.587(l)(a) and (3)(a) of
the Act) providing reasons for its decision, or to hold a hearing on the determination
of compliance, or a hearing to deal with an objection raised by the opposing party.
An application for extension of time is required to be made, if otherwise, the
Commission may not “instigate” proceedings on its own initiative.
The Decision at [3] incorrectly states that the party making the application had an
opportunity to establish that the application was lodged within time, Deputy
President Gooley did not avail the Applicant of such opportunity.
Further at [3], reference is made to “preliminary issues” raised by the Applicant at
first instance; this is an error as these issues were not “preliminary” but rather “one
of the main issues”. The Commission may not form preliminary views on whether a
matter has been lodged within time, that question must be objectively determined.
The UPA has no right of audience as a Respondent in C2018/1708 because the
appeal was instituted against the conduct of the Commission. The UPA ought to be
considered a ‘nominal respondent’ for the purposes of C2018/1708.
The UPA made its submissions in breach of s.596 of the Act and Rule 12 of the
Commission Rules as the purposes for legal representation i.e. to prepare a written
application or submission, or lodgment of such documents with the Commission
cannot constitute permission for legal representation.
The date of dismissal of Mrs Grabovsky and the issue of outstanding leave
entitlements were not determined; and therefore the reference to 20 December 2017
and the statement that outstanding leave entitlements does not alter the date of
termination is an error. Deputy President Gooley and the Full Bench did not take into
account the statutory notice period of five weeks that would have otherwise set the
deadline for lodgment at 15 February 2018.
The Decision contains irrelevant information, such as in paragraphs [4], [5], [17],
[20], [23] and [24] which do not address the grounds for permission to appeal and
makes the Decision difficult to understand (referencing s.601(3) of the Act).
In grouping the grounds of appeal to two categories, the Decision omitted
information contained in the seven grounds of appeal the Applicant had submitted.
[2018] FWCFB 6928
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The Decision states that the matter at first instance was not subject to any
submissions by the Applicant,1 wherein fact there was a submission made in the
Form F8 and in the hearing regarding the notice of termination.
The Decision’s application of other authorities is an error because it must be
consistent with statute and not with the decisions of other judicial officers.
The Decision failed to identify s.772(1)(e) as the relevant provision in prohibiting
the Applicant from being dismissed by reason of the fact that she had opposed the
application for approval of a recently made enterprise agreement.
The reference to the Applicant’s submission concerning Metropolitan Fire and
Emergency Services Board v Duggan2 omits information, namely that, it is in the
public interests that a decision at first instance not be allowed to stand by reason of
its errors, because it will mislead others to act on a wrong principle.
The appeal, as referred to in the Decision, is not ‘futile’3 because where there is at
least one error, the appeal must be permitted so that it can establish that the error
identified is sufficient for changing the decision at first instance.
[5] The remaining ‘errors’ set out in the Application are of a similar nature to those
summarised above.
[6] On 24 September 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 15 October 2018. The Applicant was also invited to provide any further submissions in
relation to the Application by that time. 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] On 8 October 2018, the Commission received further submissions from the Applicant,
in which the Applicant contends that the ‘Applicant and Members of the Full Bench for the
matter C2018/1708 are the only legitimate parties to proceeding that have a right of audience
including written 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] We do not accept such proposition. The UPA is the Respondent in matter C2018/1708
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 requires that they be given an opportunity to make submissions in respect
of the Application. In that regard we have taken into account the submissions made by the
UPA on 15 October 2018.
[9] Neither party objected to this Application being determined on the papers
1 Decision at [10].
2 [2017] FWCFB 4878.
3 Decision at [24].
[2018] FWCFB 6928
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Consideration
[10] A similar application to correct obvious errors was made by Mrs Grabovsky in matter
C2018/3178 and was dealt with by a recent Full Bench in Grabovsky v United Protestant
Association of NSW Ltd T/A UPA [2018] FWCFB 5891. Given the similarity between the
application made in C2018/3178 and the Application that is presently before us, we adopt the
approach taken by the Full Bench in [2018] FWCFB 5891 as below.
[11] 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.”
[12] 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,4 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)
4 [2011] FWAFB 7214.
[2018] FWCFB 6928
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[13] 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
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.603.5
[14] 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.
[15] 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.
[16] The Application is therefore dismissed.
VICE PRESIDENT
Final written submissions:
Applicant’s written submissions filed on 24 September 2018
Applicant’s further written submissions filed on 8 October 2018
UPA’s written submissions filed on 15 October 2018
Printed by authority of the Commonwealth Government Printer
PR702227
5 Annual Wage Review 2016–17 [2018] FWCFB 2 at [37].
WORK COMMISSION ORK THE 45€ AHOTRALL THE SEAA
