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

[2019] FWC 8670

[2019] FWC 8670

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, 23 DECEMBER 2019

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

[1] In my decision published on 27 June 2019 1 (Decision) and accompanying order of the same date2 (Order), I granted the application made by Mr Wai Kam Mok for unfair dismissal remedy and ordered that Lau and Order T/A Middlefield Group (the Respondent) pay him compensation equating to $42,503.76, less taxation as required by law, within seven days.

[2] In the Decision, I noted that in his Form F2 – Unfair dismissal application (Form F2), Mr Mok had identified the Respondent to his application as the entity Lau and Order T/A Middlefield Group.

[3] On 20 December 2019, an email from Melina Butler, a Fair Work Inspector with the Fair Work Ombudsman, was received by my Chambers. It relevantly stated:

“We refer to the above matter and note that the Fair Work Ombudsman (FWO) received a request for assistance from the Applicant, Mr Wai Kam Mok (Mr Mok), with respect to the order for compensation made by Deputy President Clancy on 27 June 2019 (Order).

We have noticed that the Order (copyattached) names the Respondent as “Lau and Order T/A Middlefield Group”, however Mr Mok’s employer was “Lau and Order Pty Ltd T/A Middlefield (ABN 57618744906)”.

The correct employer is identified at:

•  the attached Contract of Employment (which shows that Mr Mok’s employer was “Lau and Order Pty Ltd (trading as ‘Middlefield’)”);

•  the attached pay slip (which shows that Mr Mok’s employer was ‘Lau and Order Pty Ltd [ABN: 57618744906] trading as Middlefield’) and

•  the attached Australian Business Register search, which shows that the ABN associated with Lau and Order Pty Ltd is ‘57618744906’.

We respectfully request that the Deputy President consider amending the Respondent’s name in the Order and the previous decision to “Lau and Order Pty Ltd T/A Middlefield (ABN 57618744906)”, pursuant to section 602 of the Fair Work Act 2009 (Cth)…”

Relevant Principles

[4] Section 602 of Fair Work Act 2009 (the Act) 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 subsection (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.”

[5] The Explanatory Memorandum to the Fair Work Bill 2008 outlined the intention of s.602 of the Act, at paragraph 2316:

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

2316. In order to avoid unnecessary technicality, clause 602 allows FWA, on its own initiative or on application by a person, to correct or amend any obvious error, defect or irregularity in relation to a decision of FWA (including an instrument made by FWA). This clause is intended to be a statutory analogue of the ‘slip rule’ used by superior courts to correct certain errors in orders (see Re Timber and Allied Industries Award 1999[2003] AIRC 1137 at [29]-[30]). This clause does not apply, however, to a modern award or a national minimum wage order. (Clauses 160 and 296 deal with corrections to modern awards and national minimum wage orders.)”

[6] In Re Timber and Allied Industries Award 1999, 3 Justice Munro of the Australian Industrial Relations Commission dealt with the equivalent provision to s.602 in the Workplace Relations Act 1996 and stated:

“[29] This matter effectively turns upon the application of the colloquially known, “slip and error rule”. The “slip and error rule” enables a Court to make amendments where unintentional errors have occurred. Neither the applicant or respondent parties directed my attention to this rule, although with paragraph 111(1)(q) it is the foundation of the Commission’s power to issue a Correction Order. The merits of the matter may properly be confined to application or non-application of the rule to the exercise of determinative power called for in this Commission proceeding.

[30] As stated by Einstein J. in a recent judgement:

“A Court possesses an inherent power to correct mistakes in its orders arising from inadvertence: Milson v Carter [1893] AC 638 at 640 per Lord Hobhouse, approved in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at 594. A power to a like effect is to be found in Part 20, Rule 10(1) of the Supreme Court Rules, which reads –

Where there is a clerical mistake or an error arising from an accidental slip or omission in a minute of a judgment or order or in a certificate, the Court on the application or any party or of its own motion, may, at any time, correct the mistake or omission.” 4

Paragraph 111(1)(q) of the Act may be taken to be the counterpart of that power in the Commission.” 5

[7] 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 (RotoMetrics Australia), 6 the Full Bench stated:

“[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 amended was appropriate: “Of course”.”

[30] The need for caution in the use of s.602 of the Act is reinforced by s.603, which excludes from the substantive power of Fair Work Australia to vary or revoke a decision made by it under this Act “a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements)”, which includes, in Division 4 of Part 2-4, a decision to approve an enterprise agreement and the matters a decision must note (including the coverage of an employee organisation in s.201(2).” (endnotes omitted)

Consideration

[8] It can be discerned from its terms and the Explanatory Memorandum to the Fair Work Bill 2008, that s.602 of the Act “is intended to be a statutory analogue of the ‘slip rule’ used by superior courts to correct certain errors in orders.” Further, while not an exhaustive list, examples of when the ‘slip rule’ might be employed were said in Re Timber and Allied Industries Award 1999 7 and Currabubula and Paola v State Bank NSW. Currabubula v State Bank NSW8 to include the amendment of unintentional errors, mistakes arising from inadvertence, clerical mistakes or errors arising from accidental slips or omissions.

[9] Further, RotoMetrics Australia provides that a further circumstance in which the use of the “slip rule” is permissible is 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.

[10] Having reviewed the correspondence from the Fair Work Ombudsman and its attachments, it is clear all that what was lacking from the name of the Respondent in the Decision and Order I made were the words “Pty Ltd” and the applicable Australian Business Number. Further, the word “Group” was not required.

[11] My intention was to correctly name the Respondent to the application for unfair dismissal remedy made by Mr Mok in both the Decision and the Order. Had the details outlined in the correspondence from the Fair Work Ombudsman been mentioned and/or provided by Mr Mok during the proceedings, I would have been persuaded, pursuant to s.586 of the Act, to amend the description of the Respondent to the unfair dismissal application and would have then correctly named the Respondent in the Order.

Conclusion

[12] 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. 9 I am satisfied that in the circumstances before me, it is appropriate that I amend the Decision and Order.

Disposition

[13] For the foregoing reasons I have decided to:

(a) Amend the application for unfair dismissal remedy made by Mr Mok 10 so as to record “Lau and Order Pty Ltd T/A Middlefield (ABN 57618744906)” as the Respondent;

(b) Amend the Decision so that the Respondent is correctly named as “Lau and Order Pty Ltd T/A Middlefield (ABN 57618744906)” and paragraph [89] reads “An order requiring payment of this amount will be issued”;

(c) Revoke the Order (PR709726) made by me on 27 June 2019; and

(d) Order 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.

[14] An order requiring the payment of this amount will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR715548>

 1   [2019] FWC 4434.

 2   PR709726.

 3   Unreported, AIRC, Munro J, PR937647, 11 September 2003; [2003] AIRC 1137.

 4   Currabubula and Paola v State Bank NSW. Currabubula v State Bank NSW [2000] NSWSC 232 (31 March 2000) at paragraph 38.

 5   Unreported, AIRC, Munro J, PR937647, 11 September 2003; [2003] AIRC 1137 at [29]-[30].

 6   [2011] FWAFB 7214.

 7   Unreported, AIRC, Munro J, PR937647, 11 September 2003; [2003] AIRC 1137.

 8 [2000] NSWSC 232 (31 March 2000).

 9 Section 602(2) of the Act.

 10   U2019/2122.