Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA
[2018] FWCFB 5891
•26 SEPTEMBER 2018
| [2018] FWCFB 5891 |
| FAIR WORK COMMISSION |
DECISION |
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 | 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.
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;
• 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.
[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 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
1 [2011] FWAFB 7214.
2 Annual Wage Review 2016–17, [2018] FWCFB 2 at [37].
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