Miss Milena Ostojic v Hair Industrie Blacktown Pty Ltd

[2015] FWC 7624

[2015] FWC 7624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Milena Ostojic
v
Hair Industrie Blacktown Pty Ltd
(U2015/7577)

VICE PRESIDENT LAWLER SYDNEY, 5 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] This matter was heard on 26 August 2015. On that day, I delivered ex tempore reasons for decision and made an order for compensation in favour of the Applicant.

[2] It transpires that the Respondent was misnamed in the originating application. The Respondent was named as “Hair Industrie Pty Ltd” when in fact the correct name for the Respondent is “Hair Industrie Blacktown Pty Ltd”

[3] Mr Choukair was identified by the Applicant as the principal of her employer.

[4] On 2 October 2015 my associate sent a letter by Express Post to the registered business address of Hair Industry Blacktown Pty Ltd with a copy of that same letter sent by email to Mr Choukair noting that I was considering varying my decision and order of 26 August 2015 to substitute the correct name of the Respondent and invited any submissions in opposition to such a variation order by 9 October 2015.

[5] No submissions were received in response to that invitation.

[6] Sections 602 and 603 provide:

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.

603 Varying and revoking the FWC’s decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: f the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or
(b) on application by:

(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2-3 (which deals with modern awards);
(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);
(c) a decision under Part 2-5 (which deals with workplace determinations);
(d) a decision under Part 2-6 (which deals with minimum wages);
(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);
(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);
(g) a decision under section 472 (which deals with partial work bans);
(h) a decision that is prescribed by the regulations.

Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).

[7] The decision in question in this case is not a decision falling within s.603(3).

[8] The Applicant, through her representative has applied for a variation to correct the misnaming of the Respondent – an obvious error or defect.

[9] In my view, s.602 and s.603 should be construed broadly and authorise a variation of that kind (compare Refined Sugar Services Pty Ltd v Australian Workers Union [2008] AIRCFB 1069 in relation to a similar provision in the Workplace Relations Act 1996).

[10] I am satisfied that my decision and order of 26 August 2015 should be varied and corrected to substitute the correct name of the Respondent. An order has issued accordingly.

VICE PRESIDENT

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