Lend Lease Project Management & Construction (Australia) Pty LtdvConstruction, Forestry, Mining and Energy Union

[2011] FWA 3278

[2011] FWA 3278

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.602 - Application to correct an obvious error etc.

Lend Lease Project Management & Construction (Australia) Pty Ltd
v
Construction, Forestry, Mining and Energy Union

SENIOR DEPUTY PRESIDENT RICHARDS GYMPIE, 25 MAY 2011

Application for correction to order made pursuant to s.418.

[1] On 24 May 2011, at 6.44 pm, Lend Lease Project Management & Construction (Australia) Pty Ltd (“the Applicant”) made urgent application under s.602 of the Fair Work Act 2009 (“the Act”) (“the application”) seeking that I amend the order I made in  PR508114 (“the order”), which was an order made pursuant to s.418 of the Act, by 10.00am the following morning (25 May 2011).

[2] The Applicant claims that the order I made was in “obvious error” for purposes of s.602 of the Act for reason that it applied the order only to two divisional branches of the Construction, Forestry, Mining and Energy Union (“the CFMEU”), and did not extend the application to the CFMEU as an organisation or person (and not in the identity of its branches) as it properly sought (and which do not exist as legal entities apart from the organisation).

[3] This matter is apparently subject to some agitation in proceedings before the Federal Court of Australia, which are adjourned until 10.15am on 25 May 2011.

[4] The draft  order sought by the Applicant at the time of the original application (on 4 April 2011) relevantly sought application to the following:

(a) Construction, Forestry, Mining Energy Union - Construction and General Division, Queensland Construction Workers Divisional Branch, (“CFMEU”); and the

(b) Construction, Forestry, Mining Energy Union, Queensland Builders’ Labourers’ Divisional Branch (“BLF”).

[5] In my order, I applied the order, at paragraphs 2.1.1 and 2.1.2 thereof, to the:

Construction, Forestry, Mining and Energy Union - Construction and General Division, Queensland Construction Workers’ Divisional Branch (“the CFMEU”);

Construction, Forestry, Mining and Energy Union, Queensland Builders’ Labourers’ Divisional Branch (“the BLF”);

[6] My order therefore reflected the draft order provided by the Applicant at the time.

[7] I add that the Applicant's draft order also sought service to be upon (by various means) the Branch Secretaries of the two Queensland branches of the CFMEU.  It did not seek service upon the CFMEU national office or name the CFMEU as an organisation.

[8] At the same time, the Applicant made an application for substituted service under Rule 10 of the Fair Work Australia Rules 2010.

[9] In that application, the Applicant, at paragraph 1, sought substituted service in respect of:

The delegates, offices, employees, agents and members of the Construction, Forestry, Mining and Energy Union – Construction and General Division, Queensland Construction Workers Divisional Branch (“CFMEU”) and the Construction, Forestry, Mining and Energy Union Queensland Builders’ Labourers’ Divisional Branch (“BLF”).

[10] In the order for substituted service I issued, I ordered that service of the application be effected upon:

The delegates, offices, employees, agents and members of the Construction, Forestry, Mining and Energy Union – Construction and General Division, Queensland Construction Workers Divisional Branch (“CFMEU”) and the Construction, Forestry, Mining and Energy Union Queensland Builders’ Labourers’ Divisional Branch (“BLF”).

[11] Again, the order for service fell upon the same entities identities as sought in the Applicant’s application.

[12] In the application itself, the Applicant stated, at paragraph 3 thereof, that the persons against whom the order was sought were:

i. Construction, Forestry Mining Energy Union , Queensland Construction Workers Divisional Branch, (CFMEU)

16 Campbell Street, BOWEN HILLS QLD 4006

Telephone [phone], [email protected] and;

ii. Construction, Forestry, Mining and Energy Union Queensland Builders’ Labourers’ Divisional Branch, (BLF)

366 Upper Roma Street, BRISBANE QLD

Telephone: [phone], [email protected]

Facsimile: 36362138

[13] Again, this was reflected in the order that I made on 4 April 2011.

[14] In the header for the order for substituted service, however, I did make reference to the matter being in regard to (amongst others) “Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (105N)”.

[15] The Applicant also makes the point that an appearance was made in proceedings by a person purporting to be a representative of the “Construction, Forestry, Mining and Energy Union”.

[16] The Applicant now seeks, on the basis of an apparent “obvious error” on the part of FWA”  that I delete where the name “Forestry, Mining Energy Union - Construction and General Division, Queensland Construction Workers Divisional Branch; Construction , Forestry, Mining and Energy Union Queensland Builders’ Labourers’ Divisional Branch” occurs in the order and insert “Construction, Forestry, Mining and Energy Union.”

[17] I add that caused a copy of this application to be served on those parties concerned with the proceedings before the Court. I subsequently advised those parties that they should address me in writing by 10.00am am the next day (25 May 2011), immediately prior to the resumption of the Court proceedings, as to whether I should make the amendment.  No other course seemed practical in the circumstances.

[18] Section 602 of the Act reads as follows:

602 Correcting obvious errors etc. in relation to FWA’s decisions

(1) FWA may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of FWA (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If FWA makes a decision to make an instrument, FWA may correct etc. the instrument under this section (see subsection 598(2)).

Note 2: FWA corrects modern awards and national minimum wage orders under sections 160 and 296.

(2) FWA may correct or amend the error, defect or irregularity:

(a) on its own initiative; or

(b) on application.

[19] I did receive submissions from the CFEMU. It contended that there was no jurisdiction to amend the order on the grounds sought by the Applicant. Instead, the CFMEU contended that I could vary the order prospectively under s.603 of the Act.

[20] In my view, there is no ground to amend the order on the basis of an obvious error (on the part of FWA) in so far as it is contended that I misapprehended a document, a submission or an application as filed. This is because the order as sought was on the terms as sought by the Applicant (both in its draft order, its draft application and its order for substituted service. I have set this out above.

[21] However, it is clear enough to me that without reference to the CFMEU as an organisation, the order might not be enforceable in the ordinary manner.

[22] Arguably, this may be an obvious error on the part of the Applicant (in failing to identify the organisation – the CFMEU in its application, its draft order or its order for substituted service). But it is more the case that the omission of the reference to the CFMEU from the applications and the draft order was itself an irregularity which in turn gave rise to an irregularity in the order itself.

[23] Similarly so,  a defect in the applications and the draft order led to a defect in the order (in so far as the defect in the applications and draft order, not amended by FWA at the time as it might ordinarily be,  left the order without apparent scope for its ordinary and effective enforcement).

[24] In the ordinary course, the order would have applied to the CFMEU as an organisation and been enforceable, as FWA would commonly ensure in other circumstances.

[25] FWA would not exercise its jurisdiction under s.418 of the Act to make an order other than one that was enforceable. My intention on transcript was to ensure the order would have effect. In this respect, at least, there are grounds to claim that FWA made an “obvious error” in not taking the steps it ordinarily would at the time to ensure the order as sought and made was enforceable. This evidences an irregularity and a defect, but also an obvious error, albeit one that arises from different grounds to that agitated by the Applicant in this matter).

[26] For these reasons I will vary the manner as sought in the application, and an amended order in the terms as sought will be issued.

SENIOR DEPUTY PRESIDENT

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