CASE PROCEDURES – correction of error – ss.505, 602, 603 Fair Work Act 2009 – Maritime Union of Australia (MUA) had made an application to deal with a right of entry dispute under s.505 of the FW Act (Initial Matter) – in [2016] FWC 7073 (Decision), Commission found that employees employed by Toll Energy in occupations as set out in paragraphs (a) to (g) of witness statement and assigned to Off Loading Facility (OLF) team were following the occupation of waterside worker – therefore MUA entitled to represent their industrial interests under s.484(b) of FW Act – order issued [PR586898] permitting entry of MUA permit holder to the ‘MOF [Materials Offloading Facility] and WAPET landing located on Barrow Island’ in accordance with s.484 FW Act – in current matter, MUA made an application seeking a variation of the Order to correct errors – first went to identification of Toll Energy as the employer (employing entity issue) – MUA submitted clerical error by Commission which extended into Order – employees were employed by Toll Transport – respondent acknowledged Toll Transport as employer – second, went to identification of members of the OLF team (quarantine inspector issue) – submitted exclusion of persons undertaking quarantine duties as described in paragraph (h) of witness statement was inadvertent clerical error – submitted proper construction of Decision required conclusion that whole of OLF team met test of waterside worker, including team member undertaking quarantine duties – third went to inclusion in Order of location of discussions under s.484 (inclusion of locations issue) – Order stated that ‘a permit holder of the…MUA…may enter the MOF and WAPET landing located on Barrow Island for the purpose of holding discussions’ – MUA submitted limiting entry to MOF and WAPET an unintentional error and Order should be amended to refer to entry to Barrow Island – Commission considered the extent to which the matters raised by MUA could be characterised as obvious error, defect or irregularity in accordance with s.602 of FW Act – applied concept of ‘slip and error rule’ (Rule) in Re Timber and Allied Industries Award 1999 – s.602 FW Act intended to be statutory analogue of Rule [RotoMetrics Australia P/L] – use of Rule permissible where unintentional omission; order does not conform with intention of court and would have been made if issue mentioned in proceedings; where no material differences of opinion between parties; where error is manifestly clear – Commission found distinction between Toll Energy and Toll Transport became academic in hearing but remained a significant distinction such that it affected character of Order – satisfied employing entity issue not in dispute and Decision and Order reflected an oversight – Commission not persuaded quarantine inspector issue represented an obvious error – Decision was specific in limiting findings about the work undertaken within OLF team such that this excluded quarantine inspector – differential treatment of quarantine inspector function consistent with Decision – not satisfied reasoning in Decision showed exclusion able to be described as obvious error consistent with s.602 – extent of difference between MUA and respondent significant – with respect to inclusion of locations issue, Commission not satisfied relevant aspect of Order able to be described as obvious error, defect or irregularity – on considering evidence in initial matter, issue of where work undertaken and nature of work matters of particular significance – identification of locations in Order may have reflected conclusions reached with respect to that evidence in context of s.484 – Commission not satisfied aspect of Decision defective – determination of issue would likely involve reconsideration of fundamental elements of matters in dispute – change sought was fundamental and effectively required reopening of matter – Commission then considered extent to which s.603 could be applied so as to vary order regarding quarantine inspector and inclusion of locations issues – Grabovsky applied – Commission concluded that variations sought would require reconsideration of evidence in Initial Matter – given precision with which Decision described employees found to be waterside workers, quarantine inspector issue would in effect require reopening of matter – inclusion of locations issue would potentially necessitate a new argument about matters not fully canvassed in original hearing – Commission held s.603 did not provide capacity for consideration of variations sought – noted even if s.603 had provided power to vary Order, variations sought were not sustained – enough of a linkage in Decision to ultimate Order that variation of Order sought had potential to profoundly change intent of Decision – Commission held variation should be made to paragraph 122 of Decision to replace Toll Energy with Toll Transport pursuant to s.602– corresponding amendment to Order proposed – Toll Transport to have opportunity to challenge variation – Toll Energy submissions taken to incorporate position of Toll Transport as related entity – absent advice to contrary by February 2017, variation proposed by Commission to be made. Maritime Union of Australia
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