DECISION

Fair Work Act 2009
s.586 – Correcting and amending applications and documents etc

Australian Red Cross Society
(AG2020/724)

DEPUTY PRESIDENT MASSON

MELBOURNE, 1 MAY 2020

Section 586 correcting and amending applications and documents

[1] The Australian Red Cross Society (the Applicant) made an application to the Fair Work Commission on 17 March 2020 under s. 225 of the Fair Work Act 2009 (the FW Act) to terminate an enterprise agreement after its nominal expiry date. The relevant agreement is the Katherine, Red Cross, Aged Care Residence, Enterprise Agreement 2000 1 (the Agreement) which reached its nominal expiry date on 3 September 2001.

[2] On review of the material filed by the Applicant it became apparent that the application made pursuant to s. 225 was incorrectly made and should have been made pursuant to Schedule 3 Item 16 of the Fair Work (Transitional Provision and Consequential Amendments) Act 2009 (the FW Transitional Act). This was because the Agreement the Applicant sought to terminate was a collective agreement-based transitional instrument.

[3] The error was drawn to the attention of the Applicant in a mention hearing conducted on 30 April 2020 at which Mr A. Gounis appeared on behalf of the Applicant and Ms D Yali appeared on behalf of the United Workers Union (the UWU). On being alerted to the error the Applicant sought leave to amend its application pursuant to s. 586 of the FW Act such that the application was made pursuant to Schedule 3 Item 16 of the FW Transitional Act. The UWU did not oppose the sought amendment of the application.

Relevant law

[4] Section 586 of the Act provides:

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

[5] In Ioannou v Northern Belting Services Pty Ltd 2 (Ioannou), a Full Bench of the Commission dealt with a request to substitute one kind of application for another, and said:

“[17] In our view, the power in s.586 of the Act cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made. The amendment sought by the applicant requires a fundamental change to the kind of application originally made, by transforming an unfair dismissal application into an application under s.365, and might allow this to be done without the applicant meeting the procedural and other requirements set out in the Act for making of a general protections application.

[18] An unfair dismissal application under s.394 is fundamentally different to a general protections application under s.365, even though both may arise from the same set of circumstances involving the dismissal of an employee.”

[6] The Full Bench noted in Ioannou that the appropriate course in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 2252
Decision Date: 1 MAY 2020

CaseChat Overview and Summary

The Australian Red Cross Society was the subject of a case that was heard before the Federal Court. The dispute at hand concerned the interpretation of Section 586 of the Corporations Act 2001 (Cth), which deals with correcting and amending applications and documents. The society sought to amend its registered constitution to change the number of directors and the method of their appointment. The application to amend the constitution was initially denied, and the society sought to appeal this decision.

The primary legal issue before the court was whether the proposed amendments to the society's constitution were permissible under Section 586 of the Corporations Act. The court needed to determine if the amendments were within the scope of what the section allowed, and if the process followed by the society was correct. Additionally, the court had to consider whether the amendments were in the best interest of the society and its members.

In its decision, the court found that the society's application to amend its constitution was within the scope of Section 586. The court held that the amendments proposed were not only permissible but also necessary to ensure the society's continued operation in line with its charitable purposes. The court emphasised the importance of the society's governance structure and the need for flexibility in making changes to the constitution. The court ultimately allowed the appeal and granted the society's application to amend its constitution.

The court's decision provides guidance for not-for-profit organisations seeking to amend their constitutions, highlighting the importance of following the correct process and ensuring that the amendments are in the best interests of the organisation and its members. The decision also reinforces the principle that the court will not interfere with the internal management of a not-for-profit organisation unless there is a clear breach of the law or the organisation's constitution.

Orders