Australian Red Cross Society

[2020] FWC 2252

[2020] FWC 2252

FAIR WORK COMMISSION

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Act cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made.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 that case was for the applicant to withdraw the unfair dismissal application and file a general protections application together with an application for extension of time in accordance with the Act.

[7] In Hambridge v Spotless Facilities Services 3 (Hambridge), a Full Bench also dealt with a matter involving use of the wrong form. The Full Bench stated as follows (footnotes omitted):

“[25] The critical factual consideration in this matter, we consider, is the nature of the first application that was filed by Mr Hambridge. The Deputy President found in the Decision that “... it is clear that Mr Hambridge intended to make an unfair dismissal application but used the wrong form when he lodged his general protections application on 9 December 2017”. Insofar as that was a finding concerning Mr Hambridge’s intention when he made the first application, it was not challenged by either party in the appeal and was indubitably correct on the basis of the material before the Deputy President. The corollary of that finding, of course, is that Mr Hambridge did not intend to make a general protection application, and used the Form F8 by mistake. Notwithstanding his conclusion concerning Mr Hambridge’s intention, the Deputy President nonetheless treated the first application as if it were a general protections application rather than an unfair dismissal remedy application using the wrong form. That the Deputy President treated the first application as such is apparent at paragraph [20] of the Decision (in relation to the reason for the delay) and paragraph [25] (in relation to whether there was any action taken to dispute the dismissal).

[26] We consider that the Deputy President erred in doing so. The Commission is required by s.577(b) to perform its functions and exercise its powers in a manner that is “quick, informal and avoids unnecessary technicalities”. In this case, that requirement would operate to direct the Commission to look at the substance of the first application, not the form that happened to be used to make it. In substance, we consider that it was an unfair dismissal application: it was intended to be one, it was described as one in Mr Hambridge’s covering email, and its contents were concerned with contentions of unfairness in the dismissal rather than any cause of action for a contravention of Pt.3-1 of the FW Act. It must be acknowledged that Mr Hambridge attempted in the first application to respond to requests and questions concerning the general protections provisions of the FW Act, but it is apparent that he did so in an endeavour to complete a form which he understood at the time to be for an unfair dismissal remedy application.”

Consideration

[8] While the authorities cited above deal with applications made in respect of termination of employment applications, the principles outlined and applied are relevant to the application before me, that being, one must look to the substance of the application and whether the change sought by the Applicant would fundamentally change the intended application.

[9] In seeking leave to amend the application Mr Gounis acknowledged the mistaken application and confirmed that the substance of the intended application was that of the termination of the Agreement which has passed it nominal expiry date. It was merely the form of the application that was made on 17 March 2020 that was incorrect. I accept that the filing of the application pursuant to s. 225 was an error.

[10] I am further satisfied that allowing an amendment to the application would not ‘fundamentally change’ the application. Significantly, the effect of Schedule 3 Items 16 of the FW Transitional Act is that applications made pursuant to that provision are to be dealt with under Subdivision D of Division 7 of Part 2-4 of the FW Act as if the reference to the collective agreement based-transitional instrument were a reference to an enterprise agreement. That means that the requirements of ss 225 & 226 must be satisfied in respect of the collective agreement based-transitional instrument (i.e. the Agreement) as if it were an enterprise agreement.

Conclusion

[11] Pursuant to s 586(a) of the Act I will exercise my discretion and allow an amendment to the application made by the Applicant on 17 March 2020, such that the application is amended so as to be made pursuant to Schedule 3 Item 16 of the FW Transitional Act. An order giving effect to this decision will be separately issued.

[12] The application will now proceed to be determined.

DEPUTY PRESIDENT

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 1   PR786965

 2   [2014] FWCFB 6660

 3   [2017] FWCFB 2811