Wai Kam Mok v Lau and Order Pty Ltd T/A Middlefield

[2020] FWC 248

[2020] FWC 248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.602—Application to correct obvious errors etc. in relation to FWC’s decisions

Wai Kam Mok
v
Lau and Order Pty Ltd T/A Middlefield
(U2019/2122)

DEPUTY PRESIDENT CLANCY MELBOURNE, 16 JANUARY 2020

Section 602 of the Fair Work Act 2009 (Cth) – Application to amend ‘obvious error’ – application granted.

[1] In a decision published on 23 December 2019 1 (Decision), I amended the application for unfair dismissal remedy made by Mr Wai Kam Mok2 and the decision I published on 27 June 20193 (27 June 2019 Decision) so as to correctly record “Lau and Order Pty Ltd T/A Middlefield (ABN 57618744906)” as the Respondent. I also amended the 27 June 2019 Decision so that its paragraph [89] reads “An order requiring payment of this amount will be issued.”

[2] I also revoked the Order made by me on 27 June 2019 4 and in an order dated 23 December 20195 (Order) accompanying the Decision, I ordered that Lau and Order Pty Ltd T/A Middlefield (ABN 57618744906) pay $42,503.76 to Mr Wai Kam Mok, less taxation required by law.

[3] Subsequent to publishing the Decision and making the Order, I received correspondence from Ms Melina Butler, a Fair Work Inspector with the Fair Work Ombudsman advising that Lau and Order Pty Ltd T/A Middlefield (ABN 57618744906) was in liquidation at the time the Order was made. This was not raised with me at the time the Fair Work Ombudsman made its application for the 27 June 2019 Decision to be amended. The Fair Work Ombudsman suggests there may be possible difficulties associated with the issuing of the Order because of s.500(2) of the Corporations Act 2001 (Cth) (Corporations Act).

[4] Section 500(2) of the Corporations Act provides:

“(2) After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.”

[5] The Fair Work Ombudsman now seeks that I correct the Order made by me on 27 June 2019 6 pursuant to s.602 of the Fair Work Act 2009 (Cth) (the Act) so that it correctly records “Lau and Order Pty Ltd T/A Middlefield (ABN 57618744906)” as the Respondent. It would appear the Fair Work Ombudsman suggests the Order made by me on 27 June 2019 should not have been revoked.

[6] The Commission may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision on its own initiative or on application. 7 As I outlined in the Decision, my intention was to correctly name the Respondent to the application for unfair dismissal remedy made by Mr Mok in both the 27 June 2019 Decision and the Order made by me on 27 June 2019.8

[7] Lest there be any doubt regarding the operation of s.500(2) of the Corporations Act, I hereby revoke the Order I made on 23 December 2019 9 and will correct the 27 June 2019 Decision so that its paragraph [89] reads as follows:

“The Respondent is ordered to pay this amount to Mr Mok.”

[8] By adopting this course, I do not consider it necessary to deal further with the Order made by me on 27 June 2019. If, however, there is a remaining question as to whether the Order made by me on 27 June 2019 could be revoked on 23 December 2019, I correct it so that it reads “I order Lau and Order Pty Ltd T/A Middlefield (ABN 57618744906) to pay $42,503.76 to Mr Wai Kam Mok, less taxation required by law, within 7 days of this Order.”

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWC 8670.

 2   U2019/2122.

 3   [2019] FWC 4434.

 4   PR709726.

 5   PR715549.

 6   PR709726.

 7 Section 602(2) of the Act.

 8   [2019] FWC 8670 at [11].

 9   PR715549.