FEDERAL CIRCUIT COURT OF AUSTRALIA
| KNIGHT v VISIONSTREAM AUSTRALIA PTY LIMITED | [2017] FCCA 980 |
| Catchwords: INDUSTRIAL LAW – General protections – court application – issue of certificate under s.368 – application to amend name of respondent – whether amendment can cure defect – application dismissed. |
| Legislation: Fair Work Act 2009, ss.368, 370 |
| Applicant: | ANNETTE KNIGHT |
| Respondent: | VISIONSTREAM AUSTRALIA PTY LIMITED (ACN 093 384 680) |
| File Number: | MLG 2576 of 2016 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 12 May 2017 |
| Date of Last Submission: | 12 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 12 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Irving |
| Solicitors for the Applicant: | McDonald Murholme |
| Counsel for the Respondent: | Ms Preston |
| Solicitors for the Respondent: | Piper Alderman |
ORDERS
The application filed on 29 November 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2576 of 2016
| ANNETTE KNIGHT |
Applicant
And
| VISIONSTREAM AUSTRALIA PTY LIMITED (ACN 093 384 680) |
Respondent
REASONS FOR JUDGMENT
(Revised for transcript)
Before the Court are proceedings brought by Annette Knight
(“the applicant”) against Visionstream Australia Pty Limited
(ACN 093 384 680) (“the respondent”).
The applicant commenced these proceedings by filing a general protections application on 29 November 2016. The application was filed in the Fair Work Division of the Court by the applicant’s solicitors, McDonald Murholme.
The application was supported by a form 2 wherein the applicant set out the allegations of contraventions of the Fair Work Act 2009 (“the FW Act”) by the respondent along with the remedies that she sought and attached a certificate from the Fair Work Commission (FWC). The applicant also filed a statement of claim which particularised claims the applicant (as an employee) alleged of breaches the respondent (as her employer) had committed of the FW Act. Unfortunately the respondent named in that application was not the applicant’s employer.
Section 370 of the FW Act (which governs the commencement of “general protection court application[s]”) provides that a person who is entitled to apply under s.365 of the FW Act to the FWC to deal with a dispute “must not” make a general protections court application unless the FWC has issued a certificate under s.368 in relation to the dispute and the general protections application is made within 14 days after the date the certificate was issued or within such period as…
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Details
- Case
- [2017] FCCA 980
- Decision Date
CaseChat Overview and Summary
The applicant, who commenced employment as a Business Systems Analyst, alleged her employment was terminated by Visionstream Australia Pty Limited. She subsequently filed an application with the Fair Work Commission (FWC) naming Visionstream Australia as the respondent. The FWC issued a certificate under section 368 of the *Fair Work Act 2009* (Cth) also identifying Visionstream Australia as the respondent. The applicant then filed an originating application in the Federal Circuit Court, again naming Visionstream Australia. However, the respondent's solicitors asserted that Visionstream, not Visionstream Australia, was the applicant's true employer. The applicant sought to amend the originating application to substitute Visionstream for Visionstream Australia, leading to a directions hearing before Judge O’Sullivan.
The central legal issue before the Court was whether it possessed the jurisdiction to allow an amendment correcting the name of the respondent under Rule 7.03 of the *Federal Circuit Court Rules 2001* (Cth), particularly in circumstances where the FWC certificate identified a different entity. The Court was required to consider the interplay between the FWC's certification process under the *Fair Work Act* and the Court's power to amend its own processes, specifically addressing whether the FWC certificate created a jurisdictional bar to substituting a party.
The Court reasoned that section 370 of the *Fair Work Act* does not preclude the addition, substitution, or removal of a party in a general protections court application after a certificate has been issued. This interpretation aligns with Rule 7.03, which permits party substitutions if the mistake was genuine, not misleading, and did not cause reasonable doubt as to the party's identity. The Court distinguished cases like *Wills* and *Rentuza*, where the issue was the absence or incorrect type of certificate, from the present situation where a valid certificate existed but named a different entity. Drawing on *United Voice v J Markoff Family Trust T/A Belrose Care* and *Kanapathy v in de Braekt (No 3)*, the Court found that the mistake in naming the respondent was genuine and not misleading, as the entities were distinguished only by the word "Australia" and the respondent had understood the nature of the application throughout the FWC process.
The Court exercised its power under Rule 7.03 and allowed the amendment, substituting Visionstream for Visionstream Australia as the respondent. This decision was based on the finding that the mistake was genuine, not misleading, and did not cause reasonable doubt as to the identity of the intended respondent, thereby permitting the applicant to pursue her claim.
The central legal issue before the Court was whether it possessed the jurisdiction to allow an amendment correcting the name of the respondent under Rule 7.03 of the *Federal Circuit Court Rules 2001* (Cth), particularly in circumstances where the FWC certificate identified a different entity. The Court was required to consider the interplay between the FWC's certification process under the *Fair Work Act* and the Court's power to amend its own processes, specifically addressing whether the FWC certificate created a jurisdictional bar to substituting a party.
The Court reasoned that section 370 of the *Fair Work Act* does not preclude the addition, substitution, or removal of a party in a general protections court application after a certificate has been issued. This interpretation aligns with Rule 7.03, which permits party substitutions if the mistake was genuine, not misleading, and did not cause reasonable doubt as to the party's identity. The Court distinguished cases like *Wills* and *Rentuza*, where the issue was the absence or incorrect type of certificate, from the present situation where a valid certificate existed but named a different entity. Drawing on *United Voice v J Markoff Family Trust T/A Belrose Care* and *Kanapathy v in de Braekt (No 3)*, the Court found that the mistake in naming the respondent was genuine and not misleading, as the entities were distinguished only by the word "Australia" and the respondent had understood the nature of the application throughout the FWC process.
The Court exercised its power under Rule 7.03 and allowed the amendment, substituting Visionstream for Visionstream Australia as the respondent. This decision was based on the finding that the mistake was genuine, not misleading, and did not cause reasonable doubt as to the identity of the intended respondent, thereby permitting the applicant to pursue her claim.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
As provided for in the above mentioned orders the applicant filed submissions on 22 March 2017 which were (omitting those paragraphs not relied on):“A. Factual Background1. On 7 March 2016 the Applicant commenced employment with Visionstream Pty Limited (A.C.N. 062 604 193) (Visionstream) as a Business Systems Analyst pursuant to a letter of offer dated 1 March 2016. 2. On 18 August 2016 the Applicant received a letter from Visionstream Australia Pty Limited (A.C.N. 093 384 680) (Visionstream Australia) dated 17 August 2016 purporting to terminate her employment. 3. On 2 September 2016 the Applicant’s solicitors filed a Form F8 with the Fair Work Commission under section 365 of the Fair Work Act 2009 (Cth) (the Act) identifying Visionstream Australia as the Respondent. 4. On 9 September 2016 the Respondent filed a Form F8A with the Fair Work Commission identifying Visionstream as the Respondent.5. On 21 November 2016 the Fair Work Commission issued a certificate under section 368 of the Act identifying Visionstream Australia as the Respondent.6. On 28 November 2016, in accordance with the termination letter, the Form F8 and the subsequent certificate issued by the Fair Work Commission, the Applicant’s solicitors filed an originating application in this Court again identifying Visionstream Australia as the Respondent. 7. On 17 February 2017 the Applicant’s solicitors received an email from the Respondent’s solicitors asserting, inter alia, that Visionstream Australia had been incorrectly named as the respondent to the proceedings and that Visionstream was in fact the Applicant’s true employer. 8. On 21 February 2017 the Applicant’s solicitors sent a letter to the Respondent’s solicitors noting, inter alia, that rule 7.03 of the Federal Circuit Court Rules 2001 (Cth) (the Rules) allows, with leave of the Court, an amendment correcting the name of a party, even if it is alleged that the effect would be to substitute a new party, if the Court considers it appropriate and the Court is satisfied that the mistake sought to be corrected was genuine and was not misleading or such as to cause reasonable doubt as to the identity of the party. 9. The parties subsequently executed and submitted proposed minutes of consent orders providing, inter alia, that Visionstream be substituted for Visionstream Australia and that the title of the proceeding be amended accordingly. 10. The parties were later advised that the proposed orders would not be made and that an appearance was required at the directions hearing listed for 22 February 2017. 11. On 22 February 2017 the parties attended the directions hearing at which Judge O’Sullivan questioned whether the Court had jurisdiction to correct the name of the Respondent under Rule 7.03 in circumstances where the certificate issued by the Fair Work Commission under section 368 of the Act named Visionstream Australia as the Respondent. His Honour made reference to the following three authorities:(a) Bognar v Skilled Offshore Pty Ltd & Anor [2016] FCCA 2962;(b) United Voice v J Markoff Family Trust T/A Belrose Care [2012] FMCA 406; and(c)Kanapathy on behalf of Rajandran Kanapathy v in de Braekt (No 3) [2012] FMCA 1213. 12. The following submissions are made in support of the proposition that the Court does in fact have jurisdiction to substitute Visionstream for Visionstream Australia under Rule 7.03 notwithstanding the certificate that was issued by the Fair Work Commission. B. Relevant Law13. Section 365 of the Act provides:If:(a) a person has been dismissed; and(b)the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.14. Section 368 of the Act provides:(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:(a) the FWC must issue a certificate to that effect; and(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.15. Section 370 of the Act provides:A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:(a) both of the following apply:(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or(b) the general protections court application includes an application for an interim injunction.16. Section 566 of Act provides:Jurisdiction is conferred on the Federal Circuit Court in relation to any civil matter arising under this Act.17. Rule 7.01 of the Rules provides:(1) At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.(2) Subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.18. Rule 7.03 of the Rules provides:(1) This rule applies if an application in a general federal law proceeding for leave to make an amendment is made after the end of a relevant period of limitation current at the date when the proceeding was started.(2) The Court may give leave to make an amendment correcting the name of a party, even if it is alleged that the effect would be to substitute a new party, if:(a) the Court considers it appropriate; and(b) the Court is satisfied that the mistake sought to be corrected was genuine and was not misleading or such as to cause reasonable doubt as to the identity of the party.C. Relevant Authorities 19. In Bognar the Court considered that “[S]ection 370 of the FW Act […] says nothing about who might eventually be parties to a general protections court application, but rather merely prevents a person entitled to apply under s.365 of the FW Act to the FWC to deal with a dismissal dispute from making a general protections court application without a Section 368 Certificate”.[1] The Court also found that:[1] Bognar at [35]. “In terms of the jurisdictional pre-requisite to making an application for an order in respect of a contravention of a civil remedy provision there can be no doubt that a Section 368 Certificate is a jurisdictional pre-requisite. That is the point of cases such as Rentuza and Wills. Rentuza is however distinguishable from the present circumstances because the employee did not have a certificate at all. In Wills the employee had a certificate, but not in respect of the person against whom the application for orders for contravention of a civil remedy provision were brought before the Federal Magistrates Court. Thus, in both Rentuza and Wills, there was no relevant certificate to found jurisdiction.”[2][2] Ibid at [43]. 20. In Wills[3], the applicant named “Sea Breeze Resort” as the respondent. The certificate issued under section 369 of the Act also named this party as the respondent. In her application to the court, the applicant named “Axel Passeck” as the respondent rather than “Sea Breeze Resort”. Notwithstanding, this issue was overshadowed by the fact that a section 369 certificate had been issued rather than the required section 776 certificate. As such, the issue in Wills was not that the incorrect respondent had been identified, but that the incorrect type of certificate had been issued. [3] Wills v Passeck [2011] FMCA 39.21. In Rentuza[4], the applicant did not attach a certificate to her application and provided a hand written note stating “FWA not applicable”. In its response, the respondent asserted that the Court had no jurisdiction to deal with the application because, inter alia, the applicant had not obtained a section 776 certificate. This was not contested by the applicant and the application was therefore dismissed. As such, the issue again in Rentuza was not that the incorrect respondent had been identified, but that a certificate had not been issued at all. [4] Rentuza v Westside Auto Wholesale [2009] FMCA 1022.22. Bognar also referred with approval to the judgment of Justice Dodds-Streeton in Shea v Tru Energy Services Pty Ltd (No 1) [2012] FCA 628 which provided the following helpful dicta with respect to the proper interpretation of section 365 of the Act and in particular the phrase “the dispute”:“….introduction of words which narrow the meaning of “the dispute” would effectively expand the restriction imposed by s 371(1) on an applicant’s right to access the court. The court should be slow to uphold an implication or oblique construction which magnifies the scope of a prohibition on curial access…”[5][5] Shea at [67]. “…[a] requirement that the applicant’s principal claims in a court application first be comprehensively adumbrated in the FWA application appears inconsistent with the effective operation of the FWA application and contemplated process….”[6][6] Ibid at [86]. “…If misstatement or omission from the FWA application excluded a claim from a subsequent court application, there would be pressure precisely to articulate claims and unselectively to include all potentially relevant matters at a preliminary stage. The applicant would in effect be required exhaustively and accurately to frame his or her case in essentially final form at the FWA application stage, in order to avoid the prohibition on litigation...”[7][7] Ibid at [88]. “…In my opinion, on the better view, “the dispute” in s 371(1) in relation to which the making of a general protections court application is prohibited (subject to the specified conditions) is not limited to the applicant’s substantive claims made in the FWA application...”[8][8] Ibid at [91]. “…If, contrary to that view, the relevant dispute is thus limited, a general protections court application “in relation to” that dispute could legitimately include new claims, additional to and different from those in the FWA application, within the jurisdiction conferred by the issue of a certificate under s 369 in relation to the dispute….”[9][9] Ibid at [94]. 23. In United Voice the applicant requested leave to amend the name of the respondent from “J Markoff Family Trust t/a Belrose Care” to “ACK Pty Ltd as trustee for the Markoff Family Trust t/as Belrose Care”. Although the certificate issued by the Fair Work Commission under section 368 of the Act had correctly identified the employer, the application made to the court had not. The Court subsequently held that:“Rule 7.03(2) of the FMCA Rules provides the Court with the ability to amend the name including amending the name of a party even where the effect of it is to add a new party, which is not the case here. It is, in terms of the Application in a Case, appropriate to make the amendment because the relevant mistake in the respondent’s name in the application appears to be, as is submitted by the applicant’s representative, a typographical one.”[10][10] United Voice at [7]. 24. The Court further noted that:“…[t]he mistake is a genuine one, which could not be said to be misleading in circumstances where:(a) the respondent trades as Belrose Care, a name which is clear in the section 369 Certificate, the application and claim form and which means that there is no real doubt as to who the applicant’s member was employed by; and(b) the respondent employer was correctly named in the section 369 Certificate and on the information before the Court the respondent employer was correctly so named and participated in the proceedings concerning the dispute concerning the applicant member’s termination of employment before Fair Work Australia.”[11][11] Ibid at [8]. 25. In Poole v Rod Baker & Co [2011] FMCA 357, the applicant named Rod Baker and Co (t/as Higgins Insulation) as the respondent in her application. The certificate issued under section 369 of the Act also named this party as the respondent. However, the notice of termination issued to the applicant was from Higgins Insulation (Vic) Pty Ltd rather than the respondent named in the application filed with the Court. Relying upon Rentuza and Wills, his Honour held that “without a proper certificate the Court does not have jurisdiction to deal with the general protections court application”.[12] In the absence of a necessity to do so, this issue was not fully resolved as the applicant elected to discontinue her application to substitute a new respondent. [12] Poole at [25]. 26. In Kanapathy the applicant made an application under Rule 7.03(1) to correct the name of the applicant from “Nirmala Kanapathy on behalf of Rajandran Kanapathy” to “Rajandran Kanapathy”. With reference to Rule 7.03(2), the Court determined that it could make the amendment if the Court:a. “Considered it appropriate; andb. Is satisfied that:i. The mistake sought to be corrected was genuine; andii. The mistake was not misleading, or such as to cause reasonable doubt as to the identity of the party.”[13][13] Kanapathy at [28]. 27. After considering the dissenting judgment in Bridge Shipping, the Court found that this approach was “too simplistic” and that:“…the better approach is to look at all the circumstances of the case, including the applicant’s state of knowledge and belief and intentions, judged by reference to the circumstances. That approach should also not be overly technical or legally formalistic, and should not prevent the Court from dealing with the substance of the issue or from administering justice. It might also be relevant to look at the reaction upon receipt of the relevant documents, of a reasonable person in Ms in de Braekt’s position. There can be no real doubt that a reasonable person in Ms in de Braekt’s position, having received and read the application, would understand that it related to alleged racial discrimination against Mr Kanapathy.”[14][14] Ibid at [33]. 28. The Court ultimately ordered that the name of the applicant be changed to “Rajandran Kanapathy” in accordance with the applicant’s request after concluding that:“this was a case of a genuine and not misleading mistake in respect of which there is no reasonable doubt as to the identity of the true applicant, and in respect of which it is appropriate to order, pursuant to rr.7.01 and 7.03(1) and (2) of the FMC Rules, that the name of the applicant be amended to read “Rajandran Kanapathy” as sought in the applicant’s application in a case.”[15][15] Ibid at [40]. …D. Consideration30. Section 370 of Act provides that a person who is entitled to apply under section 365 for the Fair Work Commission to deal with a dispute must not make a general protections court application in relation to the dispute unless the Fair Work Commission has issued a certificate under paragraph 368(c)(3)(a) of the Act in relation to the dispute and the application is made within 14 days after the day the certificate is issued. 31. In this instance, a certificate was issued under paragraph 368(c)(3)(a) of the Act in relation to the dispute and the Applicant subsequently made an application to this Court to deal with that same dispute within 14 days of the certificate being issued. 32. There is nothing within section 370 of the Act that precludes the addition, substitution or removal of a party in a general protections court application after a certificate has been issued. As a result, this provision sits comfortably with Rule 7.03 which allows for a substitution to be made, even in circumstances where the party who is substituted into the proceedings was not initially named in the Fair Work Commission application or the resulting certificate. 33. In Bognar, it was determined that while section 370 of the Act would prevent a person entitled to apply under section 365 from making a general protections court application without a section 368 certificate, it says nothing about who might eventually be parties to a general protections court application. As such, Bognar continues to stand for the proposition that the party or parties named in the certificate need not ultimately be the same party or parties subsequently named in the general protections court application. 34. In Shea, the Court found that the addition of words which would narrow the meaning of “in relation to the dispute” would “effectively expand the restriction imposed by s 371(1) on an applicant’s right to access the court”. Indeed, any added pressure to precisely articulate claims at the Fair Work Commission application stage would unnecessarily burden an applicant who is already forced to act swiftly, and in effect require the applicant to “exhaustively and accurately frame his or her case in essentially final form at the FWA application stage”[16] and include all potentially relevant matters (and parties) at a preliminary stage. [16] Shea at [88]. 35. Shea concluded that the preferred interpretation of “the dispute” was one which did not limit the applicant’s substantive claim to that made in the FWA application. 36. It follows that the substitution of one party for another party in a general protections court application should be permitted on the basis that there is nothing contained within section 370 of the Act to preclude such a substitution, and to confine “the dispute” to only those substantive issues (or indeed parties) set out in the Fair Work Commission would be unnecessarily burdensome on the applicant and inconsistent with the contemplated process for such an application. 37. As noted above, Wills and Rentuza can both be distinguished from the present matter given that, in Wills the incorrect certificate was attached to the originating application and accordingly the court had no jurisdiction to hear the matter, and in Rentuza no certificate was attached at all. In the present case, the correct certificate was issued and attached to the originating application. 38. In United Voice the Court permitted the applicant to amend the name of the respondent to the correct entity, in circumstances not dissimilar to the present case where the change was typographical and not intended to mislead or cause confusion as to the identity of the party. 39. Similarly, in Kanapathy the applicant was permitted to correct the name of the applicant in accordance with the Rules after the Court determined that such a change was “appropriate” and was satisfied that the mistake was genuine and was “not misleading, or such as to cause reasonable doubt as to the identity of the party”. 40. Similarly, in Transport Workers Union the court allowed the applicant to change the respondent entity after finding that “there was a simple clerical error” made by the applicant which was a “genuine mistake”. E. Conclusion41. In the absence of any restriction imposed by section 370 of the Act on who might eventually be named as a party to a general protections court application, in conjunction with the interpretation of the phrase “the dispute” expounded in Shea and accepted by Bognar, it is the Applicant’s submission that the Court does have jurisdiction to exercise its power under Rule 7.03 to substitute Visionstream for Visionstream Australia. This submissions is consistent with the decisions in United Voice, Kanapathy and Transport Workers Union. The exercise of this power is reasonable and warranted in these circumstances given that:(a) the mistake was genuine;(b) the mistake was only made due to the reasonable assumption that the entity that purported to dismiss the applicant (as set out in the termination letter) was the entity that employed the applicant at the time of termination;(c) the name of the two entities in question are distinguished only by the word “Australia”;(d) the Respondent at all times understood what the application was in relation to and raised no objection to the naming of Visionstream Australia at the Fair Work Commission stage;(e)the mistake was not misleading; and(f) the mistake did not cause any doubt as to the intended identity of the respondent which at all times was the Applicant’s employer. 42. For these reasons the Applicant respectfully submits that this Honourable Court should exercise its power under Rule 7.03 to substitute Visionstream for Visionstream Australia in the proceedings.”
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Finally the applicant’s submissions in reply filed 4 May 2017 were (again omitting those paragraphs not relied on): “1. In relation to paragraph 8 of the Respondent’s Outline of Submissions:(a) On 24 February 2017 the Applicant’s solicitors sent a letter to the Associate to Commissioner Cirkovic in which they requested that the Respondent entity listed in the Certificate issued under section 368 be amended to reflect the Respondent entity listed in the Form F8A, Visionstream Pty Ltd. A copy of this email and letter is annexed and marked “A”. (b) On 24 February 2017 the Applicant’s solicitors received a response from the Associate to Commissioner Cirkovic stating that, inter alia, the Commissioner was unable to reissue the certificate as the matter was no longer before the Commission. A copy of this email is annexed and marked “B”.…3. In relation to paragraphs 14 and 15 of the Respondent’s Outline of Submissions, the Applicant did not “[know] and disregard” the knowledge of the correct employer. Rather, the mistake was made due to the reasonable assumption that the entity that purported to dismiss the applicant (as set out in the termination letter) was the entity that employed the applicant at the time of termination. The circumstances surrounding this mistake are consistent with the definition suggested by the Respondent. 4. The fact that the Applicant was “legally represented at all material times” should not have the effect of depriving the Applicant of her ability to have such a mistake rectified so that she may continue to assert her legal rights. …6. In relation to paragraph 20 of the Respondent’s Outline of Submissions, in addition to Wills and Poole the case of Transport Workers Union, referred to above at paragraph 5, also concerned an employer who had not been specified in the relevant certificate.7. In relation to paragraph 21 of the Respondent’s Outline of Submissions, the fact that the court in Wills was “clearly concerned” about the fact that the certificate specified a different respondent to that named in the court application does not change the fact that it did not make a determination on this issue. 8. In relation to paragraphs 22 to 24 of the Respondent’s Outline of Submissions, in Poole Your Honour was not required to decide this issue as the applicant elected to discontinue her application to substitute a new respondent. …10. In relation to paragraphs 26 to 30 of the Respondent’s Outline of Submissions, the Applicant refers to and repeat paragraphs 30 to 40 of her submissions filed on 22 March 2017. 11. In relation to paragraph 31 of the Respondent’s Outline of Submissions, in Autterson v ABC Dental Alliance Pty Ltd [2013] FWC 9330 Deputy President Lawrence exercised his discretion under section 586 to add a Third Respondent to the Section 369 Certificate. 12. Deputy President Lawrence did not go as far as to determine whether it was necessary for this to be done. Rather, he was simply conscious of the fact that any claim the Applicant had against the Third Respondent was “grossly out of time”[33] and a failure to add this person could result in the Applicant being denied the opportunity to pursue his claim. Again, the Applicant’s ability to peruse his claim and the Commission’s reluctance to extinguish this ability was the deciding factor in this decision. [33] Autterson at [24]. 13. In arriving at this decision, Deputy President Lawrence referred to Deputy President Sams’ observations in Lee Price v John Holland Group Pty Ltd (2013) FWC 3329, and in particular that fact that he:“…noted that the Commission’s powers under s.368, s.369 and s.370 are not to determine the legal rights and obligations of the parties. The Commission’s role is to conciliate. It should not allow questions of form to stop applicants being able to pursue their claims further. Moreover, the forms lodged in these matters are not precise legal pleadings.”[34][34] Ibid at [30].14. In Price, the respondent requested that the applicant’s general protections application be dismissed after the Form F8 failed to specify the workplace right exercised by the applicant. In concluding that the Commission was not necessarily precluded from issuing a certificate under Section 368, Deputy President Sams at [46] to [48] suggested that the powers of the Commission should not be overstated: I think it uncontroversial that the powers of the Commission under Part 3-1 of the Act do not involve the imposition of binding legal rights or obligations on parties. In my assessment, this is both the statutory and practical purpose of the provisions under this Part. The limitations of the Commission’s powers under the Part are reinforced by the use of the word ‘advice’, in s 370 and the expressed exclusion of arbitration or determination of any matter when dealing with a dispute during a conference (see Note 2). It seems to me that the legislature deliberately intended to set limits on the powers of the Commission under this Part while, at the same time, assigning a facilitative and advisory role for the Commission by calling on the Commission’s experience and expertise in conciliating disputes between employees and employers. It no doubt assumed a high success rate from this process, which in a sense could be viewed as a ‘filter’ to the general protection claims from costly and time consuming litigation in the Courts.Seen another way, the Commission is the key to opening the door for the determination of adverse action claims by the Courts. To state the obvious, if the legislature had intended to widen the Commission’s powers or replicate them from other sections of the Act, then it surely would have done so in a clear and explicit way.15. In relation to paragraph 32 of the Respondent’s Outline of Submissions, the Applicant submits that the findings in, inter alia, Transport Workers Union and Shea v Tru Energy Services Pty Ltd (No 1) [2012] FCA 628 are in fact inconsistent with the conclusions drawn by the Respondent in paragraphs 16 to 31 of its submissions. 16. In relation to paragraphs 33 to 38 of the Respondent’s Outline of Submissions, the Applicant refers to and repeat paragraph 22 of her submissions filed on 22 March 2017.17. In relation to paragraph 39 of the Respondent’s Outline of Submissions, the Respondent has incorrectly asserted that the certificate issued under Section 369 of the FW Act in Transport Workers Union specified the correct entity name. In fact, the certificate issued under section 369 of the FW Act named the Respondent as “School Bus Logistics Pty Ltd T/A School Bus Logistics” when in fact the correct entity was “School Bus Contractors Pty Ltd”. Notwithstanding, the court exercised its discretion under 7.03 of the Federal Magistrates’ Rules and amended the name of the respondent, as detailed in paragraph 29 of the Applicant’s submissions filed on 22 March 2017. As such, the Applicant does not agree that this case is “clearly distinguishable” from the present circumstances and suggests that they are in fact incredibly comparable. 18. In relation to paragraph 40 of the Respondent’s Outline of Submissions, the Applicant refers to and repeats paragraph 38 of her submissions filed on 22 March 2017 and emphasises that in Union Voice the applicant was permitted to amend the name of the respondent to the correct entity in circumstances not dissimilar to the present case. 19. In relation to paragraph 44 of the Respondent’s Outline of Submissions, the Applicant does not agree that the “essential basis” of a dispute includes the parties to the dispute for the reasons outlined in paragraph 22 of her submissions filed on 22 March 2017. Conclusion20. Further to her submissions filed on 22 March 2017, it is the Applicant’s submission that the Court does have jurisdiction to exercise its power under Rule 7.03 to substitute Visionstream for Visionstream Australia. The exercise of this power is reasonable and warranted in these circumstances given that:…(b) In Wills and Poole the Court was not called upon to determine this issue.(c) Bognar referred with approval to the judgement of Justice Dodds-Streeton in Shea, who did not make a finding with respect to this particular issue but suggested that the court should be “slow to uphold an implication or oblique construction which magnifies the scope of a prohibition on curial access”[35].(d) Such a finding would be consistent with the decisions of United Voice and Kanapathy.(e) If the Respondent’s proposition were to be accepted, it would result in the powers of the Commission being widened to such an extent that it would hereafter assume responsibility for ensuring that all possible parties to a dispute were correctly named prior to the issuing of the Section 369 Certificate. As noted by Deputy President Sams above, “[t]o state the obvious, if the legislature had intended to widen the Commission’s powers or replicate them from other sections of the Act, then it surely would have done so in a clear and explicit way.”(f) The Commission’s reluctance to extinguish an applicant’s ability to peruse a claim was reiterated in Autterson v ABC Dental Alliance Pty Ltd [2013] FWC 933, where Deputy President Lawrence allowed the applicant to add an additional respondent given that his claim against such a respondent would have been “grossly out of time”. It follows from this decision that Commissioners could feel compelled to add additional parties, whether by request or as a result of their own enquiries, so as not to deprive the applicants of their ability to pursue any future claims. (g) In the present case, the Applicant attempted to have a new certificate identifying Visionstream Pty Ltd rather than Visionstream Australia Pty Ltd as the Respondent but was told that Commissioner Cirkovic could not reissue the certificate as “the matter is no longer before the Commission”. (h) As such, in the event that the Court does not allow the Applicant to correct the mistake it would have the effect of wholly depriving the Applicant of her right to pursue her general protections claim. 21. For these reasons the Applicant respectfully submits that this Honourable Court should exercise its power under Rule 7.03 to substitute Visionstream for Visionstream Australia in the proceedings.”
Ratio Decidendi
Legal Principle Established
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