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 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 omits information about the grounds for appeal as they were submitted by the Applicant. The Applicant did not apply for an extension of time to file a general protections application, and in such circumstances, the Commission ought to make a decision to dismiss the application (e.g. pursuant to ss.587(l)(a) and (3)(a) of the Act) providing reasons for its decision, or to hold a hearing on the determination of compliance, or a hearing to deal with an objection raised by the opposing party.

• An application for extension of time is required to be made, if otherwise, the Commission may not "instigate" proceedings on its own initiative.

• The Decision at [3] incorrectly states that the party making the application had an opportunity to establish that the application was lodged within time, Deputy President Gooley did not avail the Applicant of such opportunity.

• Further at [3], reference is made to "preliminary issues" raised by the Applicant at first instance; this is an error as these issues were not "preliminary" but rather "one of the main issues". The Commission may not form preliminary views on whether a matter has been lodged within time, that question must be objectively determined.

• The UPA has no right of audience as a Respondent in C2018/1708 because the appeal was instituted against the conduct of the Commission. The UPA ought to be considered a 'nominal respondent' for the purposes of C2018/1708.

• The UPA made its submissions in breach of s.596 of the Act and Rule 12 of the Commission Rules as the purposes for legal representation i.e. to prepare a written application or submission, or lodgment of such documents with the Commission cannot constitute permission for legal representation.

• The date of dismissal of Mrs Grabovsky and the issue of outstanding leave entitlements were not determined; and therefore the reference to 20 December 2017 and the statement that outstanding leave entitlements does not alter the date of termination is an error. Deputy President Gooley and the Full Bench did not take into account the statutory notice period of five weeks that would have otherwise set the deadline for lodgment at 15 February 2018.

• The Decision contains irrelevant information, such as in paragraphs [4], [5], [17], [20], [23] and [24] which do not address the grounds for permission to appeal and makes the Decision difficult to understand (referencing s.601(3) of the Act).

• In grouping the grounds of appeal to two categories, the Decision omitted information contained in the seven grounds of appeal the Applicant had submitted.

• The Decision states that the matter at first instance was not subject to any submissions by the Applicant,[1] wherein fact there was a submission made in the Form F8 and in the hearing regarding the notice of termination.

• The Decision's application of other authorities is an error because it must be consistent with statute and not with the decisions of other judicial officers.

• The Decision failed to identify s.772(1)(e) as the relevant provision in prohibiting the Applicant from being dismissed by reason of the fact that she had opposed the application for approval of a recently made enterprise agreement.

• The reference to the Applicant's submission concerning Metropolitan Fire and Emergency Services Board v Duggan[2] omits information, namely that, it is in the public interests that a decision at first instance not be allowed to stand by reason of its errors, because it will mislead others to act on a wrong principle.

• The appeal, as referred to in the Decision, is not 'futile'[3] because where there is at least one error, the appeal must be permitted so that it can establish that the error identified is sufficient for changing the decision at first instance.

[5] The remaining 'errors' set out in the Application are of a similar nature to those summarised above.

[6] On 24 September 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 15 October 2018. The Applicant was also invited to provide any further submissions in relation to the Application by that time. 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] On 8 October 2018, the Commission received further submissions from the Applicant, in which the Applicant contends that the 'Applicant and Members of the Full Bench for the matter C2018/1708 are the only legitimate parties to proceeding that have a right of audience including written 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] We do not accept such proposition. The UPA is the Respondent in matter C2018/1708 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 requires that they be given an opportunity to make submissions in respect of the Application. In that regard we have taken into account the submissions made by the UPA on 15 October 2018.

[9] Neither party objected to this Application being determined on the papers

[10] A similar application to correct obvious errors was made by Mrs Grabovsky in matter C2018/3178 and was dealt with by a recent Full Bench in Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2018] FWCFB 5891. Given the similarity between the application made in C2018/3178 and the Application that is presently before us, we adopt the approach taken by the Full Bench in [2018] FWCFB 5891 as below.

[11] 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

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

[12] 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,[4] 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)

[13] 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.[5]

[14] 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.

[15] 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.

[16] The Application is therefore dismissed.

Applicant's written submissions filed on 24 September 2018

Applicant's further written submissions filed on 8 October 2018

[2] [2017] FWCFB 4878.

[4] [2011] FWAFB 7214.

[5] Annual Wage Review 2016-17 [2018] FWCFB 2 at [37].

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