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by CHARLIE BULOS
Solicitor, in Victoria

 

Amending applications filed under section 394 or section 365 of the FW Act (2009)


Dispute can arise when the application filed under section 365 or section 394 of the Fair Work Act (2009) “the Act”). There are times that at the time of application applicant can miss vital information to support the application. In John Talbot v O’Connor Haulage (ACT) Pty Ltd. (C2012/2949) The applicant here filed an adverse action claim for his alleged dismissal under section 352 of the Act, or when his former employer sacked him due to his temporary illness. The applicant wants to amend to include section 340 of the Act or for his proposed to exercise his workplace right, the right being to apply for work cover claim under Accident Compensation Act.


The respondent objects to any amendment and I quote its claim as follows, at paragraphs “21] The Respondent did not agree to any of these options as “at not stage during the course of his employment did he inform our company of a workplace injury.” 16


[22] The Respondent submitted that Mr Talbot should not be permitted to amend his application as the application under section 340 was not lodged within 60 days of the dismissal. It was submitted that the current application was 10 days late. 17 The Respondent complains that the basis of the Applicant’s amended claim is unclear.18”.


Furthermore the respondent claims that there is no exceptional circumstances which will allow the applicant to file the application as it was late for 10 days already. The former employer or respondent will likewise be prejudiced for having to attend to the amendment or conference and his failure to identify the provision reflects the lack of merit.


The Legislative Framework

Section 586 of the FW Act gives Fair Work Australia with the power to allow a correction or amendment of any applications and documents as follows:
“FWA may:


(a) allow a correction or amendment of any application, or other document relating to a matter before FWA, on any terms that it considers appropriate; or


(b) waive an irregularity in the form or manner in which an application is made to FWA.
Furthermore, section 366 of the Act speaks of the reasons for allowing extension of time.


Commissioner Gooley at that point in time said and quote, at paragraphs 31-33, as follows ”

 

31] In this case a valid application is before the Tribunal. Mr Talbot seeks to amend that application. In my view it is not necessary to import into the consideration applicable to section 586 the criteria set out in section 366. The FW Act requires an applicant make an application alleging that that they have been dismissed in breach of Part 3-1. There is no requirement in the FW Act that the applicant particularise the sections of Part 3-1 that they rely upon. This is a requirement of the Fair Work Australia Rules.


[32] In CEPU v Active Tree Services Pty Ltd 24 Federal Magistrate Coker, in dismissing a section 365 application, concluded that “there is a requirement for there to be as full as possible particularity, in relation to the nature of the dispute, before the conduct of the conciliation conference is able to be considered.”25 Coker FM concluded that “the use of the term “dispute” in each of the sections of the Act to which [he had] referred, section 365, section 368, section 369 and section 371 are one and the same dispute and not one which is simply a developing area of complaint or concern, following through from the negotiating process.”26


[33] Respectfully I do not agree with the conclusion that the application must be fully particularised prior to the conference. However if during the conference the dispute is articulated differently to that contained in the application then section 586 provides a mechanism for amendment of the application to ensure that the dispute that is conciliated is properly described


Furthermore, in Barry Densley v Maru Koala & Fauna Park Pty Ltd (2013) FWC 1201 decided by Commissioner Roe the application was lodged as adverse action claim under section 365 of the Act, however when the application is not to be successful under it, the application was allowed to be amended to unfair dismissal claim under section 394 of the Act and this amendment is done by virtue of section 586 of the Act.


N.B. This article should not be treated as an advice to any individual case and should engage proper employment lawyer or other specialist to assist potential applicant (s).

 

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