Diego Ortiz Parra v Live Fashion Group Pty Ltd ATF the Live Fashion Unit Trust (In Liquidation)

[2022] FWC 2259

[2022] FWC 2259

FAIR WORK COMMISSION

statement

Fair Work Act 2009

s.365 – General Protections

Diego Ortiz Parra

v

Live Fashion Group Pty Ltd ATF The Live Fashion Unit Trust (In Liquidation)

(C2022/3883)

COMMISSIONER PLATT ADELAIDE, 25 AUGUST 2022

Summary

1. Mr Diego Ortiz Parra has made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that he was dismissed in contravention of the general protections provisions of the Act. Mr Ortiz Parra’s application states that his employment was terminated by Live Fashion Group Pty Ltd ATF The Live Fashion Unit Trust (Live Clothing) on 14 June 2022.

1. The Respondent filed a form F8A Employer Response on 21 July 2022. The response contained a copy of a “Form 505 - Appointment of an administrator or controller” document which indicated that a resolution had been made that the company would be wound up voluntarily. The document indicates that Mr Shaun William Boyle of BRI Ferrier Western Australia was appointed as a “Liquidator of creditors’ voluntary liquidation” on 2 May 2022.

1. The Respondent indicated in their form F8A that they objected to the application on the basis that the company had been placed in creditors’ liquidation, and as a result of s.500(2) of the Corporations Act 2001 (Cth) (the Corporations Act), the application cannot proceed except by leave of the “Court” as defined by s.58AA of the Corporations Act.

1. This matter was listed for a conciliation conference on 12 August 2022. The Applicant did not attend this conference. The matter as then allocated to my Chambers on 17 August 2022. A telephone conference was listed for 24 August 2022 so that I could discuss the relevant issues with the parties.

1. The Applicant failed to attend the conference on 24 August 2022.

Statement

1. Section 500 of the Corporations Act provides:

Execution and civil proceedings

(1)   Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.

(2)   After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.

(3)    The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property of the company or books in his, her or its hands to which the company is prima facie entitled.

1. The first issue is whether the Fair Work Commission is a “Court” within the meaning of s.500(2) of the Corporations Act and thereby retains the power to grant leave.

1. The definition of Court is outlined at s.58AA of the Corporations Act:

Meaning of court and Court

(1)Subject to subsection (2), in this Act:

"court " means any court.

"Court " means any of the following courts:

(a)   the Federal Court;

(b)   the Supreme Court of a State or Territory;

(c)   the Family Court of Australia;

(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

(2)Except where there is a clear expression of a contrary intention (for example, by use of the expression "the Court"), proceedings in relation to a matter under this Act may, subject to Part 9.6A, be brought in any court.

Note:          The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts.

1. Upon reviewing s.58AA of the Corporations Act and the case of Smith v Trollope Silverwood & Beck Pty Ltd[1], it is clear that the Commission is not a “Court”, and it cannot grant leave as required by s.500(2) of the Act.

1. The second issue is whether a general protections application can be characterised as falling within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.

1. As a result of the Decision in Coles Supply Chain Pty Ltd v Milford,[2] the Commission has an obligation to deal with jurisdictional issues, including this one, before the it can issue a certificate which would allow the matter to proceed in the Court. In my view, an application under s.365 is a civil proceeding as described by s.500(2) of the Corporations Act.

1. In this matter, Live Clothing appears to have been placed into creditors’ voluntary liquidation by resolution on 2 May 2022.

1. I find that s.500(2) of the Act applies and the Commission has no jurisdiction to consider the application until leave is granted by the appropriate Court.

Directions

1. I will adjourn the further hearing of this matter until 24 November 2022 to allow the Applicant an opportunity to obtain leave pursuant to s.500 of the Act.

1. In the event that the Applicant is successful in obtaining leave, I will determine the matter and publish my reasons.

1. In the event the Applicant is unable to obtain leave within this period or successfully seek an additional adjournment, the Applicant will be afforded an opportunity to make written submissions as to why the matter ought not to be dismissed pursuant to s.587 of the Act.

COMMISSIONER

<PR745152>

[1] (2003) 142 IR 137.

[2] [2020] FCAFC 152.

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