Industrial Relations Commission New South Wales Medium Neutral Citation: Re Operational Ambulance Officers (State) Award [2011] NSWIRComm 61 Hearing dates: 8 April 2011 Decision date: 12 May 2011 Jurisdiction: Industrial Relations Commission Before: Boland P, Walton VP, Grayson DP Decision: Applicants' notice of motion is dismissed Catchwords: AWARD - APPLICATION TO RESCIND OR VARY - STATUTORY INTERPRETATION - New award made in respect of Operational Ambulance Officers - Thirteen individual employees claimed the Award was made without any or any proper consultation with ambulance officers employed as Extended Care Paramedics ("ECPs") and that the Award represented a serious reduction in pay and conditions for ECPs with wage reductions of up to $30,000 or more - Order sought pursuant to rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 that the judgment and orders making the award be set aside or varied - Order sought pursuant to regulation 2.5(3) of the Industrial Relations Commission Rules 2009 or rule 36.17 of the Uniform Civil Procedure Rules ("slip rule") that the judgment and orders in respect of the making of the award be corrected - Question of applicants' standing as individual employees to make notice of motion - Role of registered organisations of employees under Industrial Relations Act 1996 - Consideration of absent party rule - Consideration of slip rule - Held individual employees had no standing to make applications - Held absent party rule not applicable - Held slip rule not applicable - Applications dismissed Legislation Cited: Aboriginals Ordinance 1918 (NT) Administrative Decisions (Judicial Review) Act 1977 (Cth) Industrial Arbitration Act 1901 Industrial Arbitration Act 1912 Industrial Arbitration Act 1940 Industrial Disputes Act 1908 Industrial Relations Act 1991 Industrial Relations Act 1996 Industrial Relations Commission Rules 2009 Industrial Relations (General) Regulation 2001 Interpretation Act 1987 Uniform Civil Procedure Rules 2005 Cases Cited: Attorney-General (Cth) v R (the Boilermakers' Case) (1957) 95 CLR 529 Attorney-General (Ontario) v Winner [1954] 3 All ER 177 Australian Railways Union v Victorian Railways Commissioners [1930] HCA 54; (1930) 44 CLR 319 BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322 Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Cheesman v Waters & Attorney-General of the Commonwealth of Australia (1997) 77 FCR 221 Cobar Mines Pty Ltd Consent Award 1995, Re [1998] NSWIRComm 447 Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 Cotton Ginning, &c., Employees (State) Award, Re [1972] AR (NSW) 237 Club Employees (State) Award, Re [2002] NSWIRComm 362; (2002) 122 IR 272 Cuthbertson v City of Hobart [1921] HCA 51; (1921) 30 CLR 16 Dahozo Pty Ltd v Oz-US Film Productions Pty Ltd (1997) 24 ACSR 739 Dooney v Henry [2000] HCA 44; (2000) 74 ALJR 1289 Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch [2003] NSWIRComm 404; (2003) 130 IR 284 Hospital Employees HREA Members (State) Award, Re (1997) 75 IR 7 Hotel and Employees (State) Award, Re [2001] NSWIRComm 284; (2001) 111 IR 393 Jumbunna Coal Mine NL v Victorian Coal Miners Association [1908] HCA 95; (1908) 6 CLR 309 Kruger v Commonwealth of Australia [1997] HCA 27; (1997) 190 CLR 1 Laundry Employees (State) Award (No 2), Re (1993) 49 IR 91 Lavigne v Ontario Public Service Employees Union (1991) 81 DLR (4th) 545 Lynch v G C Schmidt Pty Ltd [1995] NSWIRComm 255; (1995) 59 IR 205 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 Nicholson v Nicholson [1974] 2 NSWLR 59 O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) (1995) 128 ALR 718 Plumbers and Gasfitters (State) Conciliation Committee, In re [1936] AR (NSW) 341 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ellis [1954] HCA 6; (1954) 90 CLR 55 Southern Copper Ltd Award, Re [1999] NSWIRComm 206 Special Constables (Police Department) Award, In re [1956] AR (NSW) 880 Speirs v Springvale Coal Pty Ltd [2010] NSWIRComm 30; (2010) 200 IR 133 Symes v Commonwealth of Australia (1987) 89 FLR 356 United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429 Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd [2010] NSWSC 1056; (2010) 80 ACSR 1 Young, James and Webster v United Kingdom (1981) 4 EHRR 38 Texts Cited: Canadian Charter of Rights and Freedoms European Convention for the Protection of Human Rights and Fundamental Freedoms "New South Wales Industrial Laws", 4th edition, 1977, Butterworths, CP Mills Laying the Foundations of Industrial Justice: The Presidents of the Industrial Relations Commission of NSW 1902-1998, Greg Patmore (ed), The Federation Press, Sydney, 2003 United Nations Universal Declaration of Human Rights Category: Procedural and other rulings Parties: Andrew Keshwan (First applicant on the notice of motion) Warwick Holland (Second applicant on the notice of motion) Wayne Anthony Flint (Third applicant on the notice of motion) Scott Clarke (Fourth applicant on the notice of motion) Jonathon Russell (Fifth applicant on the notice of motion) Peter Brian Richards (Sixth applicant on the notice of motion) Sean Cooke (Seventh applicant on the notice of motion) Lauren Cowgill (Eighth applicant on the notice of motion) Ben Southers (Ninth applicant on the notice of motion) Hannah Mavis Freitas (Tenth applicant on the notice of motion) Carina Hage (Eleventh applicant on the notice of motion) Janelle White (Twelfth applicant on the notice of motion) Sandra Macken (Thirteenth applicant on the notice of motion) Director General, Department of Health (First respondent on the notice of motion) HSU East (Second respondent on the notice of motion) Representation: Y Shariff of counsel (Applicants on the notice of motion) A B Gotting of counsel (First respondent on the notice of motion) J V Murphy of counsel (Second respondent on the notice of motion) Ffrench Legal (Applicants on the notice of motion) Slater & Gordon (Second respondent on the notice of motion) File Number(s): IRC 1514 of 2010 DECISION OF THE COMMISSION 1On 23 December 2010, the Director-General of the Department of Health (" the Department" ) filed an Application for the approval of a new award known as the Operational Ambulance Officers (State) Award ("the Award"). The application sought, inter alia , a new definition of Paramedic Specialist, which included the categories of Intensive Care Paramedic and Extended Care Paramedic. The application came before Staff J on 24 December 2010. After hearing the parties, namely, the Department and HSU East, and noting the application was by consent, his Honour correctly concluded that it complied with the Industrial Relations Act 1996 ("the 1996 Act") and the Commission's Wage Fixing Principles. Staff J made an order that the Award take effect and commence operation from 24 December 2010 and that it rescind and replace the former Award made on 2 October 2008. 2On 7 January 2011, Ffrench Legal on behalf of its clients (individual ambulance officers employed by the Department who are apparently members of the Emergency Medical Service Protection Association (NSW) Inc (" EMPSA" )) (an organisation not registered under the 1996 Act) applied to Staff J to apply the slip rule or, alternatively, set aside the orders made on 24 December 2010 and permit its clients to be heard in relation to the making of the Award. 3The essential complaint of the applicants was that the Award was made without any or any proper consultation with ambulance officers employed as Extended Care Paramedics ("ECPs") and that the Award represented a serious reduction in pay and conditions for ECPs with wage reductions of up to $30,000 or more. 4On 1 February 2011, his Honour's Associate informed Ffrench Legal that his Honour considered himself to be " functus officio " . On 8 February 2011, Ffrench Legal again applied to his Honour on behalf of its clients for an opportunity for them to be heard. The matter was listed for hearing on 24 February 2011. However, in the meantime Staff J referred the matter to the President pursuant to s 193 of the 1996 Act and the President determined that a Full Bench should deal with the matter. 5In proceedings on 4 March 2011 his Honour the President advised the Department, HSU East and counsel for the applicants of his decision to refer the matter to a Full Bench. The applicants were directed to regularise their claim by filing and serving a notice of motion and the motion was listed for hearing on 8 April 2011. 6The applicants' notice of motion, filed by 13 individual ambulance officers on 23 March 2011, sought the following orders: 1. An order pursuant to rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) that the judgement and orders made by his Honour, Justice Staff, on 24 December 2010 in proceedings No. IRC 1514 of 2010 be set aside or varied. 2. An order pursuant to regulation 2.5(3) of the Industrial Relations Commission Rules 2009 (NSW) or rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) that the judgement and orders made by his Honour, Justice Staff, on 24 December 2010 in proceedings No. IRC 1514 of 2010 be corrected. The grounds and reasons supporting the motion were contained in written submissions filed with the motion. 7Because the applicants are individual employees, it is not immediately apparent from the 1996 Act that the employees have standing to make the application in the notice of motion and both HSU East and the Department challenge that standing. Thus, as the Department submitted, the two questions before the Full Bench are: (a)The question of standing of the Applicants to make applications under rules 36.16 and 36.17 of the UCP Rules and rule 2.5 of the IRC Rules; and (b)The question of the existence of a "mistake" or "error" arising from an "accidental slip or omission" for the purposes of rule 36.17 of the UCP Rules or rule 2.5 of the IRC Rules. Standing 8The Award made by Staff J on 24 December 2010 was made on the basis that it satisfied the provisions of the 1996 Act . One of those provisions is s 10: 10 Commission may make awards The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. 9One of the applicants' complaints is that the Award did not set fair and reasonable conditions of employment. The remedy in that respect was an appeal pursuant to s 187 of the 1996 Act. The problem for the applicants, as they no doubt realised, was the terms of s 187: 187 Appeal to Full Bench from decision of Commission The following may appeal to a Full Bench of the Commission against a decision of the Commission constituted by a single member: (a) a party to the proceedings in which the decision was made, (b) an industrial organisation, or an association registered under Chapter 6, affected by the decision, (c) the Minister if the Minister considers that the public interest is, or is likely to be, affected by the decision, (d) the President of the Anti-Discrimination Board if that President considers that the decision is inconsistent with the principles contained in the Anti Discrimination Act 1977. The applicants clearly do not fall within any of the classes of persons in s 187 who may (subject to leave) appeal a decision. 10The alternative course chosen by the applicants, in a bid to overturn or significantly alter the orders made by Staff J, was to seek to have his Honour's orders set aside or varied by application of r 36.16(2)(b) of the Uniform Civil Procedure Rules 2 005 ("UCPR") or, pursuant to r 2.5(3) of the Industrial Relations Commission Rules 2009 ("the Commission's Rules") or r 36.17 of the UCPR , that the judgment and orders made by Staff J be corrected. Relevant legislation 11Rule 36.16(2)(b) of the UCPR is in the following terms: 36.16 Further power to set aside or vary judgment or order ... (2) The court may set aside or vary a judgment or order after it has been entered if: ... (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or ... 12Rule 36.17 of the UCPR provides: 36.17 Correction of judgment or order ("slip rule") If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error. 13Rule 2.5 of the Commission's Rules provides: 2.5 Correction of orders etc published on NSW industrial relations website (1) This rule applies to any order, award or contract determination that is published on the NSW industrial relations website. (2) The Registrar may publish on the NSW industrial relations website any correction that is necessary by reason of a clerical or printing error in such an order or award. (3) If in such an order or award there is any mistake arising from an accidental slip or omission, the Commission may correct the mistake or error, at any time, either on application by a party or on its own initiative. (4) The Commission may, at any time, correct any order or award for the purpose of carrying out its intention or to express its meaning more accurately, either on application by a party or on its own initiative. (5) The power under this rule is additional to the power under the Uniform Civil Procedure Rules 2005 relating to amendment. 14For the purpose of r 36.16(2)(b) the applicants contend, in effect, they were "absent parties". In determining whether the applicants have standing to set aside or vary the Award made by Staff J, it is necessary to consider whether the 13 applicants are parties to the Award. That requires consideration of the provisions of the 1996 Act relied on by the applicants. 15Section 11 of the 1996 Act provides: 11 When award may be made (1) An award may be made: (a) on application to the Commission or on the Commission's own initiative, or (b) in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute. (2) An application for an award may be made only by: (a) an employer, or (b) an industrial organisation of employers or employees, or (c) a State peak council. (3) Anyone who can apply for an award may become a party to any proceedings for making an award. (4) An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award. 16Section 12 provides: 12 Persons bound by award (1) An award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award. (2) An award that applies to a particular industry is, subject to its terms, taken to bind all employees and employers engaged in the industry. (3) An award is, subject to its terms, binding on all industrial organisations that were a party to the making of the award. 17Section 209, which is to be found in Pt 1 of Ch 5, Industrial Organisations, provides: 209 Freedom of association (1) A person is entitled to be a member of an industrial organisation, but can be prevented from becoming or remaining a member by the organisation acting under its rules and in accordance with section 260. (2) A person cannot be compelled to become, or remain, a member of an industrial organisation. Case for the applicants 18The applicants contended that s 11 of the 1996 Act must be construed by reference, in particular, to s12 and s 209(2) of that Act and this must be done in the context of the historical development of these provisions. The applicants compared the relevant provisions of the present Act with those of its predecessors and submitted that the 1996 Act represented a significant departure from earlier approaches. In that respect, it was observed that s 11(3) of the 1996 Act now provides that anyone "who can apply for an award may become a party to proceedings for the making of an award". This provision, it was submitted, had no counterpart in the predecessor statutes. It was submitted this provision created a distinction between, on the one hand, an applicant for an award and, on the other hand, a party to proceedings for the making of an award. This was a distinction that then found content in s 11(4) and s 12 of the 1996 Act. 19It was submitted that the express words of s 12 of this provision disclosed a legislative intent, by the use of the word "they" , that employees may be a party to the making of the award. Counsel contended this provision must be given work to do. It was a provision that had no counterpart in the earlier statutes, whereas s 12(2) and s 12(3) of the 1996 Act were clearly referable to earlier counterparts. 20Further, it was evident, according to the applicants, that s 11(4) contemplated two types of persons who may show sufficient interest to become a party to the making of an award: (a) First, a person who applies for an award; (b) Secondly, any other person not being the applicant for the award. 21Counsel for the applicants submitted: Whereas s 11(2) of the 1996 Act imposes clear limitation (by the use of the word "only") upon those who may apply for an award, there is no such limitation found within s 11(4). Hence, there is a limitation on applicants for an award, but not parties to an award. There is no warrant to read into s 11(4) the limitations urged by the Respondents. Indeed, such a limitation not only runs contrary to the express terms of s12, it is clearly contrary to the very significant change to the award making provisions brought about by the 1996 Act. 22It was further submitted for the applicants that the procedure and process created by the Industrial Relations (General) Regulation 2001 and the Industrial Relations Commission Rules 2009, which give effect to the enabling provisions of the 1996 Act, confirm that the 1996 Act brought about a clear recognition of the rights and interests of persons other than those specified in s 11(2) in the award making process. Reference was made to reg 23(1)(i) and r 6.8(1). These provisions are in the following terms: 23 Functions of Industrial Registrar (1) The Industrial Registrar may exercise the following functions in connection with any matter before the Industrial Registrar: ... (i) notify any person or body of proceedings in, or any other aspect of, the matter if the Industrial Registrar considers that the person or body may be affected by the matter. 6.8 Records of persons affected by awards (1) The Registrar must maintain records in relation to each award of: (a) the parties to the award, and (b) the State peak councils in relation to the award, and (c) any registered industrial organisations and other persons who satisfy the Registrar that they have a sufficient interest in applications affecting the award to justify their being served with process relating to the award. 23It was submitted these provisions reinforced a vital distinction between the limited category of persons who could apply for an award, and a broader category of persons who may apply to become parties or interveners in proceedings relating to the making of an award. It would be an illogical result, it was submitted, to conclude that individual employees may be recorded by the Registrar as interested parties (subject to application being made to and approved by the Industrial Registrar), but that they had no right to be heard in the proceedings for the making of an award either as parties or interveners. 24Reference was made to s 209(2) of the 1996 Act and the express rights conferred for the first time that " No one may be compelled to belong to an association." Counsel submitted that insofar as the right to freedom of association is concerned, not only was there no contrary intention in the 1996 Act (given the express terms of s 209), the right to freedom of association is entrenched in Australia's constitutional fabric: Kruger v Commonwealth of Australia [1997] HCA 27; (1997) 190 CLR 1 at 91 per Toohey J, at 115 per Gaudron J and at 142 per McHugh J; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at [114] per McHugh J, [147] per Gummow and Hayne JJ, and [284]-[286] per Kirby J. 25Reference was also made to Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms considered by the European Court of Human Rights in Young, James and Webster v United Kin g dom (1981) 4 EHRR 38. It was noted that notwithstanding the absence of the negative right, the Court nevertheless held at [56]: An individual does not enjoy the right to freedom of association if in reality the freedom of action or choice which remains available to him is either non-existent or so reduced as to be of no practical value. See also Lavigne v Ontario Public Service Employees Union (1991) 81 DLR (4 th ) 545 at 624-625, where the Supreme Court of Canada considered s 2(d) of the Canadian Charter of Rights and Freedoms. 26Counsel for the applicants submitted that: [H]aving regard to the text, context, purpose, history and international norms underlying the 1996 Act and its regulations, the correct approach to statutory construction is that individual employees can, subject to an order of the Commission, be made parties to the making of an award. Any other construction of the 1996 Act would place a gloss on ss 11(4), 12 and 209(2) of the Act. Such a construction would leave individual employees with no choice but to join a trade union (i.e. forced association) in order to participate in the award making processes of the Commission in circumstances where they are ultimately the primary parties bound by those instruments. 27Alternatively, it was submitted, even if employees could not be or become "parties" to proceedings, they undoubtedly could seek to intervene in those proceedings having regard to s 11(4), s 12 and s 209(2) of the 1996 Act and the decision in Re Laundry Employees (State) Award (No 2) (1993) 49 IR 91. Once accepted as interveners, the applicants would be regarded as parties: see Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 396. 28The applicants then addressed the meaning of "party" under the "absent party" rule and the slip rule. It was submitted the word "party" in r 36.16(2)(b) of the UCPR was not limited to persons who are actual parties to proceedings and extends to non-parties: Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd [2010] NSWSC 1056; (2010) 80 ACSR 1 at [6] and [10]; Nicholson v Nicholson [1974] 2 NSWLR 59; Witness v Marsden [2000] NSWCA 52 at [81]; (2000) 49 NSWLR 429 at 448; Cuthbertson v City of Hobart [1921] HCA 51; (1921) 30 CLR 16 at 25. 29Next, it was submitted that a person may make an application to be joined as a party to the making of an award if they have a "sufficient interest in the proposed award": Re Laundry Employees' (State) Award at 99-100; Re Southern Copper Ltd Award [1999] NSWIRComm 206; and Re Cobar Mines Pty Ltd Consent Award 1995 [1998] NSWIRComm 447. 30The applicants next submitted they have standing on the basis of "fundamental and inviolable rules as to procedural fairness", citing what was said to be an entrenched principle that persons who are likely to be adversely affected by orders made by a court or tribunal have a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589. 31Finally, it was contended that the question of the standing of an adversely affected non-party falls within the audi alteram partem rule or maxim: see Dahozo Pty Ltd v Oz-US Film Productions Pty Ltd (1997) 24 ACSR 739 at 741-742 and BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322. 32In a supplementary written submission that addressed questions raised during the proceedings, the applicants made the following further submissions: (a) section 17(1) of the Act has no application in the present case and/or it is not inconsistent with r 36.16 of the UCPR. In the alternative it was submitted that if Full Bench finds that Part 36 rule 16 of the UCPR does not apply to applications to set aside an award, "it would be just in the circumstances for the Commission to exercise its discretion pursuant to s 17(3)(c) of the Act to vary that part of the New Award dealing with Extended Care Paramedics (i.e., clause 5(b)(iv) (which defines the new classification) and section 8 (which sets out the rates of pay) by either deleting them or amending them in a manner that is fair and reasonable within the meaning of s.11(1) of the Act." (b) rule 36.16 of the UCPR applies to judgments or orders. Neither of those words are defined in the UCPR. Therefore, they are to be given their ordinary meaning. In the present case, Staff J gave a short decision and made two awards. A decision for the purposes of appeals under the Act includes "any award or order" . Hence, the decision itself given by Staff J is expressly capable of being characterised as an "order". Further, the Dictionary definition of "award" in the Act includes an order of the Commission under the Act that sets terms and conditions of employment. The Award was such an order, albeit made under s 11(1) of the Act; (c) it is evident on the express terms contained in r 2.5(3) and (5) of the IRC Rules that the slip rule applies to the correction of awards. Further, r 2.5(5) makes it clear that the powers under r 2.5 of the IRC Rules are additional to the powers under the UCPR relating to "amendment". The powers of amendment referred to in r 2.5(5) are directed to powers to be exercised in respect of any order, award or contract determination as is made clear in r 2.5(1) of the IRC Rules. The provisions in the UCPR as to amendment of orders and judgments are found in r 36.15, r 36.16 and r 36.17 of the UCPR. Hence, s 17 of the Act cannot stand in the way of the operation of these provisions. 33The applicants filed a further supplementary submission in reply to the Department's supplementary note (see below) and in doing so addressed the following issues: (1)the interrelationship between r 2.5 of the IRC Rules and r 36.17 of the UCPR; (2)the interrelationship between r 36.16 of the UCPR and s 17 of the IR Act; (3)the meaning of "Amendment" in r 2.5(5) of the IRC Rules; (4)the extrinsic materials. 34It is unnecessary to elaborate on those supplementary materials, but it should be noted we have had regard to them. Cases for the respondents 35The respective cases for the respondents, the Department and HSU East, were not dissimilar. Essentially it was contended that: (a) under s 11(2) of the 1996 Act an individual employee (or a group of thirteen individual employees) cannot apply for the making of an award. It is also clear from s 11(3) of the 1996 Act that an individual employee (or a group of thirteen individual employees) cannot become a party to proceedings for the making of the award. There is no capacity for individual employees, or groups of employees, outside of a registered union, to make application for, or to be heard in relation to the making of, an award: see Re Cotton Ginning, &c., Employees (State) Award & Anor [1972] AR (NSW) 237. For the system to operate with individual employees being parties to awards would be productive of chaos; (b) under s 11(4) of the 1996 Act there is a particular notion of " sufficient interest " for the making of an award and that the notion does not include a " sufficient interest " of an individual employee (or a group of employees); (c) there is no obligation under the 1996 Act on an employer or an industrial organisation of employees to consult with employees to be bound by an award or to negotiate the terms of the award with employees individually or in groups (compare s 35(1)(c) of the 1996 Act in relation to enterprise agreements; see also ss 33(2)(c), 33(2)(d) and 33(2)(e) of the 1996 Act). Equally, there is no obligation under the 1996 Act on an employer or an industrial organisation of employees to have the employees to be bound by an award approve the award prior to its making (compare s 36(4) of the 1996 Act in relation to employee enterprise agreements). Similarly, there is no obligation under the 1996 Act on an employer or an industrial organisation of employees to notify employees individually or in groups of an intention to apply to the Commission for the making of a new award; (d) rule 36.16(2) draws a distinction between a " party " and a " person " - subrule (2)(b) focuses upon a " party " and subrule (3) focuses upon a " person " who was " ordered to be added as a defendant ". The distinction between a " party " and a " person " constitutes a difference in meaning - a " party " is a party to the proceedings whereas a " person " is not a party to the proceedings; (e) rule 36.16(2) states that it is immaterial whether the " absent party " had " notice " of the relevant hearing or substantive application. The purpose of specifying the irrelevance of " notice " is to emphasise that an application to set aside or vary can be made even though the " party " had notice of the hearing or the substantive application. Notice of the hearing or the substantive application is given to a party to the proceedings - it is not given to non-parties to the proceedings; (f) the UCPR draw a distinction between a " party " and a " person ". A " party " is a party to the proceedings (such as the plaintiff, the defendant, the cross-claimant, the cross-defendant the appellant and the respondent). A " person " is a non-party; (g) for the purposes of r 36.16(2), a " party " is a party to the proceedings and does not extend to a non-party; (h) there were two parties to the proceedings IRC 1514 of 2010 - the Director-General of the Department of Health and the HSU East. Both of those parties were present at the hearing on 24 December 2010. Neither of those parties was " absent " from the hearing when the 2010 Award was made. Accordingly, the pre-condition for the exercise of r 36.16(2)(b) of the UCPR is not met; (i) the applicants were not capable of being a party to the proceedings IRC 1514 of 2010 - they did not come within the classes identified in s 11(2) or s 11(3) of the 1996 Act and they were incapable of establishing the sufficient interest necessary for the purposes of s 11(4) of the 1996 Act; (j) as the applicants were not a party to the proceedings, they were not a " party " for the purposes of r 36.16(2)(b) of the UCPR and the pre-condition for the exercise of r 36.16(2)(b) is not met; (k) the case law cited by the applicants ( Nicholson v Nicholson; Workers Compensation Nominal Insurer v Detail Flooring Pty Limited ) does not support their claim that they are to be treated as a " party " for the purposes of r 36.16; (l) the case law cited by the applicants ( Witness v Marsden; Cuthbertson v Mayor, Aldermen and Citizens of the City of Hobart ) on standing to appeal does not support their claim that they are to be treated as a " party " for the purposes of re 36.16(2)(b). 36In supplementary written submissions, in answer to questions from the Full Bench, the Department made the following points: (a) due to the combined operation of r 1.7 and Schedule 2 to the UCPR, r 2.5 of the IRC Rules prevail over r 36.17 of the UCPR to the extent of any inconsistency; (b) given the combined operation of r 1.7 and Schedule 2 to the UCPR, it is not necessary to have regard to principle of statutory construction concerning a specific provision operating to the exclusion of a general provision; (c) the Department did not submit that r 2.5 of the IRC Rules is inconsistent with r 36.17 of the UCPR as both rules require an " accidental slip or omission " and both rules require a " mistake " or " error " " arising " from the accidental slip or omission. Rule 2.5 has a limited operation (in comparison to rule 36.17) as there must be an award or order published on the NSW industrial relations website; (d) as to the interrelationship between r 36.16 and s 17 of the IR Act, s 9 of the Civil Procedure Act does not permit the Uniform Rules Committee to make uniform rules which circumvent the requirements of s 17 of the IR Act. Additionally, at a general level, r 36.16(2)(b) of the UCPR was not intended to be used, and cannot be used, as a " side wind " to avoid the requirements of s 17, especially section 17(3), of the IR Act. However, r 36.16(2)(b) of the UCPR was not intended by the Uniform Rules Committee to permit a general application to vary an industrial award - by its terms, r 36.16(2)(b) was only intended to be available where a judgment or order was made in the " absence " of a " party " and was intended to confer the court or tribunal with a discretion to set aside or vary the judgment or order due to a matter associated with the " absence " of the " party " (such as procedural fairness considerations) ; (e) as to the meaning of "amendment" in r 2.5(5) of the IRC Rules the rule provides that the power under r 2.5 is " additional to the power under the Uniform Civil Procedure Rules 2005 relating to amendment ". The UCP Rules address " amendment " in three aspects: (i) amendment of documents (such as originating process) to replace a business name with the name of a defendant (see rule 7.22 of the UCP Rules); (ii) amendment and disallowance of amendment of pleadings (see Part 19 of the UCP Rules); and (iii) amendment of notices of appeal (see rule 51.23 of the UCP Rules). (The Department did not submit that the " power" of amendment under the UCP Rules is relevant to the present motion. The Department also accepts that it is not readily apparent how the express preservation of the " power " of amendment under the UCPR is relevant to the correction of an award published on the NSW industrial relations website, although the express preservation may be directed to an " order " published on that website.) (f) reference was made to the applicants submission that the enactment of s 209 of the IR Act, for the first time in 1996, achieved a fundamental change to the persons permitted to be a party to proceedings for the making of an award. It was submitted as being most material that such an alleged fundamental change was not mentioned in the explanatory note or the second reading speech accompanying the bills that became the IR Act; (g) it was accepted that the definition of " party " in the Dictionary to the IR Act could (theoretically) apply to a natural person, although it was accepted that it would not easily apply to a natural person. It was submitted that the purpose of the definition of " party " was to make plain that a party extends to a successor of a party, thereby recognising the effect of the transmission of business provisions (see Part 8 of Chapter 2 of the IR Act), and permitting a successor to a party to make application to vary or rescind an award (see section 17(2) of the IR Act). 37The Department filed a further supplementary written submission in reply to the applicants' supplementary submission. It is only necessary to note from that submission that the Department opposed the variation sought by the applicants pursuant to s 17(3) of the 1996 Act. Consideration 38The question of whether an individual employee can be a party to an award and, therefore, able to seek to vary an award or set it aside, is to be determined according to the rules governing statutory interpretation. Those rules or principles were stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69]; (1998) 194 CLR 355 at 381-382 as follows: The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman , "in the context of the legislation read as a whole"). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed ( Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312 per Gibbs CJ, 315 per Mason J, 321 per Deane J). 39We also refer to the observations of the Full Bench as to statutory interpretation in Speirs v Springvale Coal Pty Ltd [2010] NSWIRComm 30; (2010) 200 IR 133 as follows (at [67] and [68]): [67] Having made those observations, it is important to record what the current task of the court is in the interpretation of those statutes. We adopt, in that respect, what Spigelman CJ stated in Harrison v Melham [2008] NSWCA 67; (2008) 72 NSWLR 380 at [16] as follows: The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma (1995) (4) BCLR 401 at 402; [1995] ZACC 1; [1995] (2) SA 642; Matadeen v Pointu [1998] UKPC 9; [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council , 13 December 1995, unreported; Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford [1904] HCA 15; (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].) [68] A further principle of statutory interpretation was stated by his Honour in Caterpillar Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83; (2009) 255 ALR 131 at [86]. It is also important in this matter. His Honour stated: It is now well established that the contemporary approach to statutory interpretation requires a court to have regard to the context in which words appear in the first instance and not merely after some ambiguity has been identified. (See eg CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 184 CLR 384 at 405; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 at [11].) 40The context in which s 11 and s 12 of the 1996 Act exists is the principal statute regulating the conduct of industrial relations in New South Wales. It is a statute with antecedents stretching back to the Industrial Arbitration Act 1901 ("the 1901 Act"), which established a Court of Arbitration with jurisdiction to hear and determine industrial disputes and to enforce awards and orders. The 1901 Act followed from a Royal Commission established following strikes in the 1890s "to investigate and report upon the causes of conflicts between capital and labour, known as strikes, and the best means of preventing or mitigating such occurrences and to consider from an economic point of examination, the measures that have been devised in other countries by the constitution of boards of conciliation or other similar bodies to obviate extreme steps in trade union disputes and to consider a report on the whole subject." According to Labour Historian Greg Patmore, "The NSW compulsory conciliation and arbitration system arose from the failure of collective bargaining and voluntary arbitration". (Greg Patmore (ed), Laying the Foundations of Industrial Justice: The Presidents of the Industrial Relations Commission of NSW 1902-1998, The Federation Press, Sydney, 2003, p 54). 41Provision was made in the 1901 Act for the registration of trade unions as industrial unions and only they, or the Registrar, could initiate proceedings before the Court: "New South Wales Industrial Laws", 4 th edition, 1977, Butterworths, CP Mills at 5. The limitation on the Court's jurisdiction to "dispute" cases meant that it could not make its decisions apply as common rules (Mills at 5). The Industrial Disputes Act 1908, however, did not require the existence of a dispute as a condition precedent for the exercise of the Industrial Court's jurisdiction (Mills at 5) and industrial boards were given power to make common rule awards, that is, awards binding on all employers in an industry or occupation whether or not they were involved in the making of the award and on employees in that industry or occupation. Common rule awards have remained a feature of the New South Wales system of industrial regulation to this day. The common rule provision found expression in the Industrial Arbitration Act 1912 ("the 1912 Act") at s 25 and s 29; in the Industrial Arbitration Act 1940 ("the 1940 Act") at s 87; in the Industrial Relations Act 1991 ("the 1991 Act") at s 104; and in the 1996 Act at s 12. 42The 1912 Act provided in s 31 that proceedings (including an application to the board for an award) could be commenced, inter alia , by an application signed by: (a)an employer or employers of not less than 20 employees in any such industry or calling; or (b)an industrial union whose members are employers or whose members are employees in any such industry or calling. 43This provision was maintained in the 1940 Act at s 74 and a similar provision appeared in the 1991 Act (at s 108). Section 11(2) of the 1996 Act broadened the scope of who might apply for an award by removing the limitation on employers of "not less that 20 employees" and added State Peak Councils. 44It has never been contemplated in any of the antecedent legislation to the 1996 Act that individual employees could be parties to awards. From the outset, the legislature relied on registered industrial organisations of employees to represent the interests of employees in an industry or calling in the award making process. This conformed with the stated objects of industrial legislation in New South Wales over this whole period. In the 1996 Act, this was reflected in the objects in s 3(d) and (g), the dispute resolution provisions in Ch 3 (noting that these processes are often the foundation for or actually result in award making) and the elaborate mechanisms for the registration of organisations in Ch 5. The notion of common rule ensured that the award made bound all employers and employees in the relevant industry or calling. 45In relation to s 87 of the 1940 Act, in Re Cotton Ginning, &c., Employees (State) Award & Anor [1972] AR (NSW) 237 the Commission heard applications from two individual employers to rescind, or declare null and void, variations of two awards affecting those employers which had earlier been made in circumstances where those two employers had not been served with, or given the opportunity to be heard in relation to, the applications for award variations. In that case Sheppard J held that a variation made to a common rule award without notice to any employer was not a nullity. His Honour stated at 242: It must be remembered that although the Commission is required to act judicially in determining applications before it for an award or a variation thereof its awards and the variations of them which it makes operate as a common rule in the community (s. 87). The Act and the regulations made thereunder do not envisage that every person interested in an application will be notified of it. They do envisage that steps will be taken to ensure that those employee and employer unions (as well as individual employers in certain cases) obviously interested will be notified. 46In his judgment, Sheppard J referred to the audi alteram partem rule ("hear the other side" - it is a principle of natural justice that no one shall be condemned unheard) in the context of the application of s 87 of the 1940 Act. At 246 his Honour stated: It would not however seem to matter that the Industrial Commission is a tribunal which exercises both arbitral or quasi - legislative functions as well as judicial functions and was in relation to the variations under consideration here exercising arbitral functions. In the end the question of whether the order of a tribunal such as this Commission, in circumstances where for one reason or another the audi alteram partem rule has been infringed, is to be regarded as a nullity must be answered by the construction of the statute which constitutes it and defines its functions and procedures. Of overriding importance in this connection are, in my opinion, the provisions of s.87 making the Commission's awards a common rule in the community. Even where an applicant complies with the terms of reg. 38 there must be cases where one or more employers or groups of employers will be overlooked. This is unlikely in most cases but it will obviously happen from time to time simply because no reasonable amount of enquiry on the part of an applicant, even with the aid of the Registrar's records, will uncover the identity of all employers or the industrial unions which represent them. In such a case, however, a large number if not the bulk of employers will be notified either directly or through their unions and some employers will therefore turn their minds to what is sought in the application and decide to consent to it or to oppose it. It is true that there is no express provision in the Industrial Arbitration Act for representative parties to be appointed in proceedings before the Commission but the registration of industrial unions and the part which they play in the Commission's proceedings (although an employer is not bound to join such a union and is entitled to apply to be separately heard) means that the Commission does proceed in most cases with representative parties before it. In the case of employees this is always so in the case of an application made on their behalf (s.74(2)). In the case of an employer's application it is the appropriate industrial union or unions of employees which are served and employees are not individually notified. I shall have something to say later on about an association such as the co-operative here which in relation to one award does purport to represent the industrial interests of employers who are its members but is not registered as an industrial union. (emphasis added). 47Notwithstanding the position under predecessor legislation, the applicants claim that when one considers the provisions of s 11(3), s 11(4), s 12 and s 209 of the 1996 Act, which had no counterparts in the predecessor legislation, this constitutes a substantial shift and when considered with the provisions of the Regulations and Rules referred to earlier, it is clear that the legislature's intention was that individual employees could apply to become parties to awards. 48This is a contention at odds with the decision of Cahill J Re Cobar Mines Pty Ltd Consent Award 1995 , where his Honour stated: The Commission ruled against the application for intervention made by Mr Roach. While it is true that the Commission possesses a wide discretion to allow intervention, the present circumstances, in my view, are insufficient to warrant the granting of intervention in the present case. The Act, with regard to award making, recognises the rights of application and appearance of industrial organisations of employees, not employees individually. So much is evident from s 11, which provides that an application for an award may be made only by an employer, an industrial organisation of employers or employees, or a State peak council, and that "anyone who can apply for an award may become a party to any proceedings for making an award". Section 17 of the Act, which empowers the Commission to vary or rescind an award, provides that s 11 shall apply in regard to any such variation or rescission. Section 166, relied on by Mr Roach, concerns representation of parties in proceedings. The fact is, as I am informed, that all the unions parties to these proceedings had members employed under the award before the retrenchments took place. However, as I further understand the position, in 1997 a large number of employees who were members of the AWU made a conscious decision to resign from that body and join the Rural Workers Union, an unregistered organisation for the purposes of the Act. In doing so, they effectively ruled themselves out of representation in the award-making procedures prescribed by that legislation. It cannot reasonably be said, in the circumstances, that they should nevertheless be allowed to participate in such proceedings either individually or by an agent or by a body unrecognised by the Act, of which they are members, or that it would be a denial of natural justice if participation on such a basis were not permitted. (emphasis added) 49If, notwithstanding Cobar Mines , the applicants are correct in their contentions it would mean (and the applicants conceded this) that individual employees would not have standing to apply for the making of an award, but having been made a party to an award, the individual employees could apply to vary or rescind the award, to appeal any decision and indeed, to be engaged in any conciliation and arbitration process involving renewal or replacement of the award. In our view, this would create a chaotic situation (both in terms of award regulation and dispute resolution) and would undermine the status of registered organisations. There is no rational basis for bestowing status on a registered organisation to apply for an award and to be a party to an award to bind all employees in an industry or calling, only to provide individual employees with standing to vary or rescind the award or to participate in negotiations in respect of the making of the award or variation of the award. It would be completely inconsistent with the object of the 1996 Act expressed in s 3(d) "to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies". It would not encourage representative bodies of employees if individual employees were given equal standing as a party to the making of a common rule award. 50If the applicants are correct, many thousands of individual employees could apply to become parties to the making of an award and each of them would be required to be served in relation to any application concerning the award: r 6.9(5) of the Commission's Rules. The applicants submitted that this would be manageable because the Commission would retain the discretion of having to be first satisfied that an individual employee had a sufficient interest in an award before he or she could be made a party. But if the provisions of Div 1 of Ch 2 of the 1996 Act are to be construed in the manner contended for by the applicants, namely, an individual employee may apply to become a party to the making of an award that is to bind the employee, it must follow that the employee would have sufficient interest. This would create its own acute difficulties in the case of enterprise awards, but, in the case of awards applying across sectors, occupations or industries, the result would be to render the system effectively unworkable, in a way that the legislature set its mind against by the provision of a system for the fair and orderly regulation of industrial relations. 51We would have expected such a radical change that departed from 110 years of relying on registered organisations of employees to be the representative body for employees in the making and administration of the award system, would have been clearly signalled by the legislature. But there is not the slightest indication in the explanatory memorandum or the Minister's second reading speech introducing the Industrial Relations Bill of any such intention (see Hansard, 23 November 1995, Legislative Council, at 3844-3860). 52The applicants made reference to the decision of the Full Court in Lynch v G C Schmidt Pty Ltd [1995] NSWIRComm 255; (1995) 59 IR 205. One of the complaints in that case by the respondent company was that Liddy J had not inquired into the matter of the persons who might be affected by and/or interested in the proceedings and the determination made therein and that the respondent had not been afforded a proper opportunity to be heard. The Court stated at 216-217: The first question which arises is whether the 1940 Act and the regulations made thereunder required or envisaged that every application for a common rule award, order or determination was to be served upon all persons who may be bound by or affected by the common rule. In our opinion no such service was required or envisaged and indeed is at variance with the concept of a common rule. There is no doubt that the former Commission was required to act judicially. But that requirement was qualified by the provisions and purposes of the 1940 Act, the nature and content of the matters thereby regulated, the powers and functions of the Commission and the practicalities of the jurisdiction exercised. Regulations 38 and 63 of the General Regulations and s.91M of the 1940 Act manifested the position that, so far as possible, applications for awards and/or determinations, common rule or otherwise, should have been served upon any parties or persons who had an interest therein, namely those who would be bound thereby. But there is an obvious difficulty, if not impossibility, in the case of a common rule, in determining, at a given point of time, the identity of each and every person involved in the industry to which the award or determination relates. The legislation in our opinion proceeded upon the basis that, having regard to the nature and content of the powers and jurisdiction vested in the tribunals, that those tribunals would act judicially to an extent which was consistent with the practicalities and the objects and requirements of the 1940 Act. That duty has at its foundation the necessity to afford interested parties, so far as is reasonably practicable, an opportunity of being "heard" in any proceedings giving rise to the making of a determination which will bind them. However, the 1940 Act and the regulations thereunder also envisaged, having regard to their purposes and the obvious practicalities, that strict compliance with the requirements of the audi alteram partem rule was not possible. The difficulty was overcome by constituting what can be described as "representative" bodies of employers and employees (and principal contractors and contract carriers). Hence the detailed provisions in that Act providing for and regulating associations or unions of employers and employees respectively. The requirement of the audi alteram partem rule was generally satisfied in the practicalities of the matter by the hearing of representative parties which were given special status, rights and obligations under the 1940 Act. This, of course, is not to say that an individual who demonstrated an interest in a matter did not have the right to be heard therein. However, in the case of appearance, for example, by individuals of whom there may be many thousands in some cases, the resolution of any such issue, if one arose, would ultimately have resided in the discretion of the Commission; that discretion would have been exercised having regard to the feasibilities or practicalities involved and the necessity for some reasonably efficient conduct of proceedings and the doing of justice. However, by definition, it seems to us that the concept of a common rule excluded any strict application of the audi alteram partem rule. 53The applicants referred to that part of the judgment regarding an individual's right to be heard under the 1940 Act. It is to be noted that the Court did not determine, in terms, that an individual had a right to be heard and more to the point it did not determine that an individual could be made a party to an award, which is what the applicants contend for in these proceedings. Moreover, the Court at 219 agreed with what Sheppard J stated in Cotton Ginning , including that: "The Act, with regard to award making, recognises the rights of application and appearance of industrial organisations of employees, not employees individually." At 220 the Court stated: The fact that the respondent in this case chose not to be a member of a New South Wales representative body of employers representing interests in the transport industry in the class of contracts involved in this case, but chose instead to join an organisation registered in the Australian Capital Territory, was a matter which suited the convenience of the respondent. This was a matter for him. So far as we are aware it has never been the practice in the New South Wales jurisdiction to require service of applications on unions or organisations registered in the federal jurisdiction or in other States. Nor indeed has it been or is it the practice in New South Wales to require service on all contract carriers in this industry or employees in other industries, with applications for awards or determinations, notwithstanding that they will be bound by any award or determination made in the proceedings. Indeed, as already observed, service in such circumstances would be quite impracticable if not impossible; it would defeat a cornerstone of the legislation, namely the making of common rule awards and determinations. 54A further case relied upon by the applicants concerning the 1991 Act was Re Laundry Employees (State) Award (No 2) . The case concerned an organisation of employers registered under federal law, but not the 1991 Act, which had sought to appear as agent for a number of New South Wales employers in proceedings involving the making of a new award. The passage relied upon by the applicants appears at 99-100: In other cases the right of an organisation to appear in proceedings depends upon it being able to demonstrate a sufficient interest in the proceedings and their outcome. Where the interest is not direct but indirect it may nevertheless be such as to warrant the grant of leave to an organisation to intervene and appear in proceedings. A similar position obtains in relation to persons other than organisations. In order to be a primary party to or be granted leave to intervene in proceedings the person must establish, to the Commission's satisfaction, that it has a sufficient interest in the proceedings in the sense that it will be materially affected or bound by the outcome or such other sufficient interest to warrant its appearing in an being heard in the proceedings ... It follows that the determination of whether a person who claims to be a party to proceedings is such a party and should appear therein are matters within the discretion of the Commission, such discretion, of course, to be properly exercised having regard to the relevant criteria. 55We do not think it can be claimed that the reference to "persons" in that part of the judgment cited by the applicants refers to any person other than an employer. So much is clear from the context, which included the issue of an individual employer's right to be made a primary party to the proceedings or a mere intervener. This is evident from what was stated at 101: A claim by an employer to be made a party to a proceeding frequently goes without challenge. Normally a person does not seek to assume the inconvenience and expense of appearing in proceedings without good reason. Even if there is challenge the making out of a prima facie case is usually sufficient, certainly where party principal status is claimed. The making of a prima facie case would generally, in the case of award proceedings, require simple documentary or oral demonstration that the person concerned is an employer of labor (sic) who is bound by the existing award or will be bound by any award or order which may be the outcome of the proceedings. ... The Laundry Employees case says nothing about the right of individual employees under the 1991 Act to be made parties to award proceedings. No analogy can be drawn because individual employers could, under the1991 Act, apply for an award and be made a party to an award. There was no such provision in relation to individual employees. 56The applicants, nevertheless, rely on the language of the relevant provisions of the 1996 Act. The applicants referred to the distinction in s 11(3) between, on the one hand, an applicant for an award and, on the other hand, a party to proceedings for the making of an award, which it submitted finds content in s 11(4) and s 12. 57Section 11(4) provides that "An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award" (emphasis added). A legislative intention to reverse over 100 years in the approach to award parties requires clear language. The language of s 11(4) only reinforces the notion that an applicant to become a party to an award is an entity other than a natural person. Whilst the language in s 11(4) lacks precision, it is not possible that the legislature chose to describe an individual employee seeking to become a party to the making of an award as "it or any one or more of its members". It is more consistent with the scheme of the 1996 Act that such processes would occur in the case of employees, through registered organisations of employees (or State Peak Councils). 58A slight infelicity of language is also evident in s 12(1), which states: "An award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award." The applicants contend that by the use of the word "they" the provision contemplates individual employees being parties to the making of an award. There is no other indication in the 1996 Act of a legislative intention to allow individual employees to become a party to the making of an award other than the word "they" in s 12(1). That provision, however, is directly at odds with s 11. The word "they" should be construed as referring to employers, who by s 11 may become a party to the making of an award, or who may choose not to. 59Section 11(4) refers to an applicant for an award and an applicant to become a party to the making of an award. Each is required to satisfy the Commission that "it or any one or more of its members has a sufficient interest in the proposed award." First, it is to be noted that a provision such as s 11(4) is obviously necessary in order that an industrial organisation or employer may seek to be made a party to the making of the award where it is able to demonstrate a sufficient interest. An industrial organisation of employees may seek the making of an award to apply to employers and employees in a particular industry. Other organisations of employees and employers or employer organisations in the industry may wish to be made parties to the proposed award in order that they may, from then on, participate and be heard in relation to matters affecting the award because they have a sufficient interest in the award. 60Secondly, s 11(4) refers to an applicant to become a party to the making of an award. There is no provision in the 1996 Act for an individual employee to be made a party to an award once made, which is what the applicants seek to do here. We note in passing that s 17(2) provides that s 11 applies to any application to vary or rescind an award. It would seem to follow that on any such application the persons who may become a party to the making of an award may also apply to become a party to a variation of an award. 61Thirdly, the provisions of Pt 2 of Ch 2 dealing with enterprise agreements, and in particular s 31 and s 36, stand in stark contrast to the language of s 11(4) or s 12. Sections 31 and 36 acknowledge, in explicit terms, that employees or groups of employees may be parties to enterprise agreements. 62The applicant sought to place reliance on Div 3 of Pt 6 of the Commission's Rules in contending that individual employees could be made parties to awards. Rule 6.8 and 6.9 provide: 6.8 Records of persons affected by awards (1) The Registrar must maintain records in relation to each award of: (a) the parties to the award, and (b) the State peak councils in relation to the award, and (c) any registered industrial organisations and other persons who satisfy the Registrar that they have a sufficient interest in applications affecting the award to justify their being served with process relating to the award. (2) The Registrar may remove any of the persons or bodies in subrule (1) (c) if satisfied that the person or body has ceased to have a sufficient interest in applications affecting the relevant award. (3) At least once every 3 years the Registrar must give notice to each person or body referred to in subrule (1) in relation to an award, and to the Commission, that the award is due to be reviewed under section 19 of the Act. (4) Such notice may also be given whenever an application for a new award is filed. 6.9 Party cards (1) In this rule: party means a person or an organisation that has an interest in an award, or in the making of an application in respect of an award, or that has otherwise participated in the making or variation of an award. party card means a register of parties, maintained by the Registrar, that have an interest in an award. (2) The Registrar must maintain a system of party cards. (3) Application for inclusion on the party cards may be made to the Registrar in the approved form. (4) The Commission may direct that a party be added to or removed from a party card in respect of a particular award or awards. (5) Parties to an award that are recorded on a party card must be served with any application concerning the award. (6) A party may be removed from a party card by the Commission, provided that the party has been given at least one month's written notice (to be been [sic] sent to the party's last known address) of the proposal to do so. (7) An application to remove a party from a party card in relation to an award may be made by any other party to the award. 63The applicants emphasised the reference to "persons" in the above Rules, noting that s 21 of the Interpretation Act 1987 provides that the word "person" includes an individual, a corporation and a body corporate or politic. However, the word "person" is to be construed according to its context and if the statutory provision indicates a contrary intention, an individual will not be regarded as a "person" for the purpose of the provision. 64Rules 6.8 and 6.9 must be construed in light of the relevant provisions of the 1996 Act. The Rules cannot enlarge the scope of who might be made parties to awards beyond what the 1996 Act provides. The reference to "persons" in r 6.8 is limited to a body corporate, that is, an employer as provided by s 11 and s 12 and does not include an individual. The same applies to the word "person" in r 6.9(1). 65As part of their contention that the 1996 Act constituted a significant shift from its antecedents, the applicants relied on s 209(2) of the 1996 Act to submit that: [W]hen reading sections 11 and 12 together with section 209, it is clear parliament thought no employees should be forced to become a member of an industrial organisation, so the position would be that ... employees in this State, should they wish to become a party to an award or party to an award making process, would be forced to join an organisation, which thwarts a fundamental human right. 66In support of their contention regarding a fundamental human right, the applicants referred to Kruger . That case concerned the constitutional validity of the Aboriginals Ordinance 1918 (NT), which provided the legal basis for the removal of Indigenous children from families and communities in the Northern Territory. The plaintiffs were Aborigines from the Northern Territory, who had been removed from their parents and families when they were young children. The basis of the plaintiffs' challenge was that the removals infringed certain constitutional rights or freedoms. One of the claims was that the Ordinance was contrary to an implied constitutional right to and/or guarantee of freedom of movement and association. 67Toohey and Gaudron JJ recognised the existence of an implied freedom of movement and association in the Constitution. McHugh J also recognised the existence of an implied freedom of movement and association in the Constitution, which were necessary to guarantee the implied right of political communication in the Constitution. However, none of these Justices went on to hold that the Ordinance contravened the implied freedoms. Dawson and Gummow JJ rejected the notion of an implied freedom of movement and association. Brennan CJ did not need to decide the issue, but considered that even if there were an implied constitutional right to freedom of movement and association, such a constitutional requirement would not have invalidated the impugned provisions. 68We do not consider Kruger provides any support for the applicants' contentions in this case. 69The applicants referred to Article 20(2) in the United Nations Universal Declaration of Human Rights, which provides that " No one may be compelled to belong to an association." It was submitted that legislation should be construed in a manner consistent with the established rules of international law especially where there is an ambiguity, absent a contrary intention: see Jumbunna Coal Mine NL v Victorian Coal Miners Association [1908] HCA 95; (1908) 6 CLR 309 at 363; and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287. 70We do not consider that the absence of any right under the 1996 Act for an individual employee to be a party to the making of an award is inconsistent with the Human Rights Declaration. Section 209 provides that a person cannot be compelled to become, or remain, a member of an industrial organisation. The provision is primarily designed to deal with "closed shop" arrangements whereby employees were sometimes coerced to join the relevant union. It is not a provision that assists the applicants to contend that they must join a union to become a party to an award. Simply by joining a union will not make individual employees parties to a common rule award or an enterprise-based award. It is the union that is the party and a union member has no more rights to apply for, vary or rescind an award than a non-union member. 71However, if individual employees wish to have a voice in the making of an award an option - not a compulsion - is to join a union, which is entirely consistent with that object of the 1996 Act that encourages representative bodies of employees and s 209 has to be construed in that light. 72Further, as we understand the background to this matter the applicants, along with a significant number of their colleagues, resigned from HSU East or ceased being a financial member. In doing so, in the words of Cahill J in Cobar Mines "they effectively ruled themselves out of representation in the award-making procedures ..." It should be obvious that for the Commission to now recognise that body of employees by making them parties to the award would undermine, in a significant way, the indispensable role and standing under the 1996 Act of a registered organisation of employees with coverage of the applicants' work. As Fisher P said in Re Hospital Employees HREA Members (State) Award (1997) 75 IR 7 at 8-9: It is not too much to say that the representative concept of the union and its administration is a foundational organisational concept within the legislation and is fundamental to the scheme of the Act. 73We also refer to the observation of the Full Bench in Re Club Employees (State) Award [2002] NSWIRComm 362; (2002) 122 IR 272 at [83] and [84] as follows: [83] Moreover, whilst the Industrial Relations Act contains extensive provisions dealing with the rights of the individual (for example, Ch 2 Pt 6 - Unfair dismissals, Ch 2 Pt 9 - Unfair contracts, Ch 5 Pt 1 - Principles of association) it has a strong collective theme running through it. That is, embodied in the statute is a system of industrial relations that relies for its operation on collective representation through registered bodies of employers and employees. This is manifested in the fundamental processes for dealing with industrial disputes and the making of awards and enterprise agreements. [84] Given the object of the Act expressed in s 3(d) and the importance, perhaps necessity, of representative bodies to the machinery of industrial relations in this State, an award provision enabling payroll deductions for the purpose of facilitating the payment of an employee's union membership fees could not be said to be inconsistent with either the Act's object or the policy framework in which it operates. Indeed, such a payroll deduction facility may be seen as a means of directly encouraging representative bodies of employees. (See also Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch [2003] NSWIRComm 404; (2003) 130 IR 284 at [31].) 74The applicants also referred to Young, James and Webster v United Kin g dom and Lavigne v Ontario Public Service Employees Union , which were decisions of the European Court of Human Rights regarding Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Supreme Court of Canada in relation to s 2(d) of the Canadian Charter of Rights and Freedoms, respectively . Neither decision has any relevance to these proceedings and, in any event, as we have stated, we do not consider that the absence of any right under the 1996 Act for an individual employee to be a party to the making of an award is inconsistent with any charter of rights. 75The applicants' next contention was that, in the alternative, even if employees cannot be or become " parties " to proceedings, they could seek to intervene in those proceedings having regard to s 11(4), s 12 and s 209(2) of the 1996 Act and the decision in Laundry Employees. Once accepted as interveners, it was submitted the applicants would be regarded as parties: see Bradley at 396; United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) (1995) 128 ALR 718 at 722-723 ; and Cheesman v Waters & Attorney-General of the Commonwealth of Australia (1997) 77 FCR 221 . 76In Bradley's case it was held at 396 that: A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae. Interveners have been allowed to appeal. Thus the Attorney-General of the Commonwealth appealed to the Privy Council in Attorney-General of the Commonwealth of Australia v. The Queen (the Boilermakers' case), though he was only an intervener in R. v. Kirby; Ex parte Boilermakers' Society of Australia in the High Court. See also Attorney-General for Ontario v. Winner . 77Bradley was a case concerned with, inter alia , whether the appellant should have been given leave to appeal against the admission of the Commonwealth as an intervener in proceedings originally involving as parties the Corporate Affairs Commission and the respondent. Hutley JA, with respect, cited no direct authority for the proposition that a person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Indeed, what his Honour said would seem to be at odds with what Dixon J said in Australian Railways Union v Victorian Railways Commissioners [1930] HCA 54; (1930) 44 CLR 319 at 331: I think we should be careful to allow arguments only in support of some right, authority or other legal title set up by the party intervening. Normally parties, and parties alone, appear in litigation. But, by a very special practice, the intervention of the States and the Commonwealth as persons interested has been permitted by the discretion of the Court in matters which arise under the Constitution. The discretion to permit appearances by counsel is a very wide one; but I think we would be wise to exercise it by allowing only those to be heard who wish to maintain some particular right, power or immunity in which they are concerned, and not merely to intervene to contend for what they consider to be a desirable state of the general law under the Constitution without regard to the diminution or enlargement of the powers which as States or as Commonwealth they may exercise. See also R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ellis [1954] HCA 6; (1954) 90 CLR 55 at 68-69 per Kitto J. 78The references in Bradley to the Attorney-General (Cth) v R (the Boilermakers' Case) (1957) 95 CLR 529 and Attorney-General (Ontario) v Winner [1954] 3 All ER 177 only serve to make the point that the Attorney General may, as an intervener, appeal. The other cases relied upon by the applicants involved the construction of various statutes. For example, in United States Tobacco what fell to be considered was s 12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth): Application to be made a party to a proceeding (1) A person interested in a decision, in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct or failure in relation to which an application has been made to the Federal Court or the Federal Magistrates Court under this Act, may apply to the Court to be made a party to the application. (2) The Court may, in its discretion- (a) grant the application either unconditionally or subject to such conditions as it thinks fit; or (b) refuse the application . 79We do not consider the cases relied upon by the applicants are authority for the proposition that in this jurisdiction a person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. 80The jurisprudence in this Commission regarding intervention is usually regarded as stemming largely from a decision of McKeon J In re Special Constables (Police Department) Award [1956] AR (NSW) 880 (although there is an earlier authority to the same effect In re Plumbers and Gasfitters (State) Conciliation Committee [1936] AR (NSW) 341). What his Honour there determined has been adopted as the practice in this jurisdiction in relation to applications to intervene (subject to the provisions of s 167 of the 1996 Act). 81The following principles may be drawn from Plumbers and Gasfitters and Special Constables : (a) whether a person is to be granted leave to intervene is a matter that lies within the discretion of the tribunal; (b) the granting of leave to intervene does not confer upon the intervener the full right of a party; (c) intervention in a proceeding for an award should be treated as a protective step to ensure that the interest that the intervener has in the case is fully appreciated and adequately protected and is not prejudiced or placed in jeopardy; (d) the Commission retains the power to restrict or limit the intervener in such manner and to such extent as it may think fit. Duplication should be avoided; (e) the Commission, when it permits intervention, should actually exercise at all times a careful and strict control over the extent to which an intervener may participate in the case and should set its face against allowing interveners to go beyond such point as the Commission is satisfied is necessary to protect their own particular interest. 82The applicants submitted that it was a "universal" rule of procedural fairness that a party with sufficient interest in proceedings was required to be given an opportunity to be heard: Cameron v Cole ; Dahozo ; and BP Australia Limited v Brown . 83Those cases concerned matters in quite different statutory contexts. For example, Cameron v Cole concerned a debtor who was the subject of a sequestration order which was made in his absence and about which he had no notice. Dahozo , in which Bryson J discussed the audi alteram partem rule, concerned the requirement to notify a person who had an apparent interest in an application to reinstate a company that had been dissolved. 84The present proceedings concern the question of whether an individual employee has a right to be made a party to the making of an award. It is a question to be determined according to the terms of the 1996 Act, not by common law notions such as the audi alteram partem rule. A literal application of the rule would mean that, as they would be bound by any award made by Staff J and, therefore, could most likely establish a sufficient interest, his Honour would have been bound to hear from some 3,000 ambulance officers in the making of the Award if such applications were made. Such a construction is at odds with the purpose and content of the 1996 Act. 85We referred earlier to Lynch where some consideration was given to the audi alteram partem rule. There it was determined under the 1940 Act "that the concept of a common rule excluded any strict application of the audi alteram partem rule" (at 217). There is no basis that has been put that would cause us to take a different view under the 1996 Act. 86We refer to the alternative submission by the applicants in their supplementary submissions that: [I]t would be just in the circumstances for the Commission to exercise its discretion pursuant to s 17(3)(c) of the Act to vary that part of the New Award dealing with Extended Care Paramedics (i.e., clause 5(b)(iv) (which defines the new classification) and section 8 (which sets out the rates of pay) by either deleting them or amending them in a manner that is fair and reasonable within the meaning of s.11(1) of the Act. 87The applicants have no standing to seek such a variation as the only persons who may apply for such a variation are an employer, an industrial organisation of employer or employees or a State peak council (see ss 11(2) and 11(3) of the 1996 Act, as applied by s 17(2) of that Act) and the applicants are not such persons. 88We find that the 1996 Act precludes an individual employee from either becoming a party to the making of an award or from being joined as a party to an award under Pt 1 of Ch 2 of the 1996 Act. Without delving into the merits of the motion, we would observe that, in the ordinary course, a group of employees (whether members of a union party to proceedings or not) disaffected by an agreement reached between industrial parties, would not appropriately be granted, under these principles, a right to intervene to disturb a consent arrangement. The very nature of negotiations by parties to an award is that outcomes will differ between work classifications and groups, be influenced by cost considerations and compromises reached between parties. The Commission generally favours consent arrangements in the public interest, but will nonetheless interfere where an arrangement contravenes the wage fixing principles or a provision of the statute. No such circumstances were evident in this case. Absent party rule 89It having been determined that an individual employee is not and cannot be a party to the making of an award, it remains to be determined whether r 36.16(2) of the UCPR applies so that the Award made by Staff J on 24 December 2010 may be set aside or varied. 90What the applicants rely on is r 36.16(2)(b). That is to say, the applicants contend that they were "absent parties" who had not been given notice of the hearing before Staff J or of the application for the Award , and in those circumstances the Award should be set aside. 91There is, as the Department submitted, a deliberate distinction drawn in the UCPR between "party" and "person". A " party " is a party to the proceedings (such as the plaintiff (see, for example, r 6.1, r 6.27, r 12.1, r 23.9 and r 29.1), the defendant (see, for example, r 6.1, r 6.27, r 12.1, r 23.9 and r 29.1), the cross-claimant (see, for example, r 9.1), the cross-defendant (see, for example, r 9.2), the appellant (see, for example, r 51.2) and the respondent (see, for example, r 51.2)). A " person " is a non-party (see, for example, r 6.23 and r 18.3). Rule 36.16 distinguishes between a "party" and a "person": cf r 36.16(2)(b) and r 36.16(2)(c). 92As the Department further submitted, r 36.16(2)(b) indicates that it is immaterial whether the " absent party " had " notice " of the relevant hearing or substantive application. Thus, an application to set aside or vary can be made even though the " party " had notice of the hearing or the substantive application. Notice of the hearing or the substantive application is given to a party to the proceedings; it is not given to persons who are not parties to the proceedings. 93The only parties to the proceedings before Staff J were the Department and HSU East and both were present on 24 December 2010. There is no basis to suggest that there was an absent party for the purposes of r 36.16(2)(b) at the time the Award was made. 94The applicants, nevertheless, sought to rely on two authorities: Workers Compensation Nominal Insurer v Detail Flooring Pty Limited and Nicholson v Nicholson. 95In Workers Compensation Nominal Insurer v Detail Flooring Pty Limited the issue was whether a creditor of a company the subject of a winding-up order had standing under r 36.16(2)(b) to set aside the winding-up order. The winding-up order was made on the application of another creditor in the absence of the company the subject of the order. Barrett J held that the pre-condition of r 36.16(2)(b) was met, as the company was " absent ". His Honour also considered whether the creditor, who was not a party to the proceedings, had standing to make an application under r 36.16(2)(b). In that respect, Barrett J made no definitive ruling whether the creditor had standing under r 36.16(2)(b). His Honour stated: [6] As a contributory, Mr Davis has standing under s 482 of the Corporations Act to apply for an order terminating or staying the winding up of Flooring: see s 482(1A)(a) (he in fact makes such an application in the alternative). That is, in a sense, statutory recognition of the interest that a contributory has in a winding up order affecting his or her company. It may be thought that that, coupled with the circumstance that a non-party with a clear interest in the subject matter has been regarded as a competent applicant under the predecessor to rule 36.16(2)(b) ( Nicholson v Nicholson [1974] 2 NSWLR 59; Douglass v Gillmann [1990] 19 NSWLR 570), means that the court may and should entertain Mr Davis's application for an order setting aside the orders of 24 June 2010. [7] There is, however, a strong contrary indication in the judgment of Callinan J in Dooney v Henry [2000] HCA 44; (2000) 74 ALJR 1289. His Honour there said (at 1295): "The action has been brought by a natural person, a director, in order to seek relief in favour of, that is, effectively on behalf of, a company in liquidation. A director is not a proper party in any such proceedings. If there is to be any challenge to the winding up order it must be made by the company itself with leave pursuant to s 471A of the Corporations Law . [Emphasis added] [8] The italicised passage indicates that "any challenge" to a winding up order in respect of a company can only be made by the company itself activated by officers acting with leave under s 471A of the Corporations Act ; and that this is a consequence of the particular statutory scheme. That statutory scheme, it appears, leaves no room for the notion that a person such as a creditor or contributory with a clear interest in a winding up order may, in his or her own right, apply to have that order set aside; and that this is so even though a creditor or contributory is given by the statute itself standing to seek an order terminating the staying or termination of the winding up. [9] Given, however, that Mr Davis and his brother are the only directors of Flooring and that approval under s 471A(1A)(d) may be given retrospectively ( Brolrik Pty Ltd v Sambah Holdings Pty Ltd [2001] NSWSC 1171; (2001) 40 ACSR 361), the convenient course is to consider the merits of Mr Davis's claim to have the orders of 24 June 2010 set aside. The question of approval under the section can then be addressed if it appears that the necessary case has been made out and an appropriate application in that respect is made. 96His Honour found there was no sound basis made out for setting the order aside under r 36.16(2)(b). His Honour then proceeded to deal with the question of standing pursuant to s 482(1A)(a) of the Corporations Act 2001. 97Workers Compensation Nominal Insurer v Detail Flooring Pty Limited falls well short of establishing that individual employees have standing under r 36.16(2)(b) to have an award set aside. It is evident from the case cited by Barrett J, namely, Dooney v Henry [2000] HCA 44; (2000) 74 ALJR 1289 , that if there is a contrary intention in the statute, r 36.16(2)(b) does not apply to non-parties. It should be evident from what we have said in this decision that such a contrary intention exists in the 1996 Act. 98The other case relied upon was Nicholson v Nicholson . That case concerned whether a party who had applied and obtained ex parte an injunction could, under the predecessor to r 36.16, seek to set aside the injunction in circumstances where it was not the " absent party ", but in fact the moving party for the injunction who appeared at the hearing. The party restrained by the injunction did not appear at the hearing. The opponent put a submission that only the " absent party " had standing to make application under the predecessor rule. Jenkyn J held that there was no reason for cutting down the literal meaning of the predecessor rule and the party obtaining the injunction had standing to make an application under the predecessor rule even though it was not the " absent party " . As the Department correctly submitted, Jenkyn J did not hold that interested non-parties had standing under the predecessor rule. Whilst his Honour did refer to the position of interested non-parties, and did state that the predecessor rule should be construed so as to extend the court's power to cover applications by "all interested persons", his Honour's observations were merely obiter . His Honour was not considering the position of a non-party - the person restrained by the injunction in that case was a party to the proceedings. In any event, as we have found, there is a contrary intention in the 1996 Act that renders r 36.16(2)(b) inapplicable. 99We find that r 36.16(2)(b) of the UCPR is not available to individual employees seeking to set aside an award of the Commission made under Pt 1 of Ch 2 of the 1996 Act. 100We would wish to make one further observation regarding the application of r 36.16(2)(b) to industrial proceedings under the 1996 Act. Whilst the UCPR has broad application to proceedings before the Industrial Court of New South Wales, they have much more limited application in proceedings before the Industrial Relations Commission (see r 1.5, Sch 1 and Sch 2 of the UCPR). Part 36 of the UCPR was not excluded in relation to the Industrial Relations Commission proceedings, but it does not sit comfortably with the provisions of the 1996 Act relating to the making of the awards. In this case, an award was made by Staff J and published in a manner which made it effective in law. For good industrial policy reasons the provisions of the 1996 Act stand against the alteration of awards after their making, particularly when made by consent of the parties. 101It may be necessary for the Rules Committee to consider whether Pt 36 of the UCPR should apply in relation to the making of awards. Slip rule 102Rule 2.5(3) of the Commission's Rules provides, in relation to an award published on the NSW industrial relations website, that: "If in such an order or award there is any mistake arising from an accidental slip or omission, the Commission may correct the mistake or error, at any time, either on application by a party or on its own initiative." 103Rule 36.17 of the UCPR contains a similar provision that: "If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error." 104The first thing to be noted about the two rules is that it is only a party that may seek to correct a mistake or error. The applicants were not parties to the making of the Award and the slip rule is not available to them. 105Secondly, there was no evidence or suggestion that Staff J committed a "clerical mistake". Nor was there any evidence or indication of an " error " arising from an " accidental slip or omission ", or a " mistake " arising from an " accidental slip or omission " that is required to be corrected in the Award. 106The applicant referred to Symes v Commonwealth of Australia (1987) 89 FLR 356. Symes concerned a motion to vary the order for costs in the plaintiff's favour so as to add that the plaintiff have his costs at full Supreme Court scale. 107In considering the matter, Gallop J stated: 8. It now seems to be settled law that the application of the slip rule is not confined to giving effect to the judge's intention at the time when his judgment or order was made. It extends also to the intention which the court would have had but for the failure by reason of which there was an accidental slip or omission. The slip or omission may have been made by the party applying under the rule or, of course, by his counsel or solicitor ( Arnett v. Holloway [1960] VicRp 6; (1960) VR 22). The Court of Appeal in R. v. Cripps (1984) 2 All ER 705 at 710 observed with respect to the rule: "It is surprisingly wide in its scope. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. But it also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended. However, it cannot be overemphasised that the 'slip rule' power can never entitle the trial judge or a court to reconsider a final and regular decision once it has been perfected, even if it has been obtained by fraud." 9. When I pronounced judgment in the matter, neither counsel made any application for the exercise of the discretion as to costs provided for in Order 65, rule 7A(3). I have a recollection that at the time of pronouncing judgment, including the orders for costs, I considered whether any special order for costs would be appropriate, but as no application was made by either counsel for any special order, I did not make one. In the circumstances the plaintiff can only succeed on this application if he can establish that I would have made a special order for costs but for his failure to apply. 108Symes is of no assistance because the applicants were not party to the making of the Award and there was no error or mistake or accidental omission by Staff J in making the Award. 109The applicants also referred to Re Hotel and Employees (State) Award [2001] NSWIRComm 284; (2001) 111 IR 393. That case concerned an appeal by appellants who at first instance, in proceedings under s 19 of the 1996 Act, had not been provided with an opportunity to be heard in circumstances where an application under s 19 sought to make changes to the relevant award that were not permitted by the section. Marks J, in approving the award, had not been apprised of the extent of the changes being sought. The appeal was upheld. 110Re Hotel and Employees (State) Award only serves to demonstrate that, in circumstances where parties have not been accorded natural justice in respect of the making of an award, the appropriate course is an appeal. The appeal was not determined on the basis that Marks J made an error or mistake under the slip rule, but rather on the basis that the changes made to the award were not permitted under s 19 of the 1996 Act. The case does not assist the applicants. 111The true position is that the applicants are dissatisfied with the terms of the Award and desire a very substantial revision of it or its recission. That is not a proper basis for invoking the slip rule and we so find. 112To be clear then, the answers to the two issues posed by the Department are: (a) the applicants do not have standing to make applications under rules 36.16 or 36.17 of the UCPR or r 2.5 of the IRC Rules; and (b) in addition to the finding that the applicants do not have standing, there was no evidence or suggestion that Staff J committed a "clerical mistake". Nor was there any evidence or indication of an " error " arising from an " accidental slip or omission ", or a " mistake " arising from an " accidental slip or omission " that is required to be corrected in the Award. Orders 113The Full Bench orders that the applicants' notice of motion is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2011