It is not uncommon for it to be difficult to identify the legal identity of an employer for, say, an unfair dismissal case; thus
“[14] The Full Bench in Chambers v Broadway Homes Pty Ltd has elucidated the principles
concerning the proper approach to be taken to identifying the parties to a contract.10
I have considered the decision in Chambers and all the evidence before me. In doing so, I have arrived
at the conclusion that Coles Supply was the Applicant’s employer.
[15] In Sinden v HDR Inc. (Sinden), a Full Bench of this Commission considered the
operation of s 586(a) of the Act, stating:
Section 586(a) of the FW Act provides that the Commission may “allow a correction or
amendment of any application, or other document relating to a matter before the FWC, on any
terms that it considers appropriate”. The discretionary power conferred by s 586(a) is selfevidently broad, and encompasses but is not expressed as confined to the correction of mistakes.
In respect of the amendment power in a previous iteration of the federal legislative scheme for
industrial relations, the High Court treated it as having a wide field of operation so as to give
effect to the statutory intention that proceedings should be directed to the merits and that
technicalities and legal forms should not be regarded. The same approach is applicable under
the FW Act having regard to the requirements in s 577(b) for the Commission to perform its
functions and exercise its powers in a manner that is quick, informal and avoids unnecessary
technicalities and in s 578(b) for the Commission in performing functions and exercising powers
in relation to a matter to take into account equity, good conscience and the merits of the matter.
In the context of the Commission’s unfair dismissal jurisdiction, the s 586(a) power has been
used to correct the identification of a respondent employer to the extent of substituting one
corporate entity for another. 11
[16] The appropriate course in light of the facts before me is to correct the identification of
the respondent employer by replacing the Respondent with Coles Supply. In circumstances
where the Applicant has genuinely attempted to identify the correct employer and has referred
this Commission to cogent evidence in support of his contention that he was employed by the
legal entity named in the Medical Assessment Letter and Termination Letter, it is difficult to
[2023] FWC 1384
4
conceive his application being defeated on the jurisdictional ground advanced. As observed in
Sinden, the Commission must take into account equity, good conscience, and the merits of the
matter,12 in addition to performing its functions in a manner that is quick, informal and avoids
unnecessary technicalities.13
[17] I am satisfied that in allowing the correction to be made under s 586(a) of the Act, a new
application is not created or otherwise established, and such correction does not fundamentally
change the nature of the application. In this respect, the Respondent faces no prejudice. It is
well established, as noted in Sinden, that the Commission can amend an application using the
power in s 586 of the Act by changing the identity of the respondent to an application.
[2023] FWC 1384
5
[18] Pursuant to s 586(a) of the Act, the Applicant’s unfair dismissal application should be
amended to substitute ‘Coles Supermarkets Australia Pty Ltd’ for ‘Coles Group Supply Chain
Pty Ltd’ as the name of the respondent. An Order14 issues concurrently to that effect. The
parties are placed on notice that directions will issue shortly regarding the filing of materials in
respect to the merits of the unfair dismissal application and remedy.”
Kuir v Coles Group Supply Chain Pty Ltd [2023] FWC 1384 delivered 14 June 2023 per Beaumont DP