Fair work cases; identity of employer

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