Knight v Visionstream Australia Pty Limited
[2017] FCCA 980
•12 May 2017
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 |
| Cases cited: United Voice v J Markoff Family Trust T/a Belrose Care [2012] FMCA 406 Shea v TruEnergy Services Pty Ltd (No.1) [2012] FCA 628 Beggs v Login Systems Pty Ltd [2013] FCCA 526 Maher v Mulgowie Pty Ltd [2010] FCA 439 Newman v East Yarra Friendly Society Trading as My Chemist Pharmacy [2011] FCA 1262 Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186 Adam v Apple Pty Ltd [2012] FMCA 881 Pang v Kerry Ingredients Australia Pty Ltd [2015] FCCA 824 Ward v St Catherine’s School [2016] FCA 790 |
| 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 the Court allows. In this case whilst the application was filed within 14 days of the date of the FWC certificate, that certificate did not name the applicant’s correct employer either.
The application was given a first Court date of 22 February 2017. Prior to this, and on 17 February 2017, a notice of address for service was filed on behalf of “Visionstream Australian Pty Limited”. Then on 21 February 2017 a notice of address for service was filed on behalf of “Visionstream Australia Pty Limited ACN 093 384 680”.
The same day the solicitors for the applicant sent correspondence to the Court which said as follows:
“We refer to the above matter and the Directions Hearing listed before His Honour tomorrow, Wednesday 22 February 2017.
We should be grateful if His Honour would amend the name of the Respondent with the consent of the parties (see consent orders attached).
The error arose in the naming of the Respondent as Visionstream Australia Pty Limited because the Respondent used that name in its termination letter (see attached). The same letter was attached to the Application to the Fair Work Commission.
It is now conceded by the parties that this was an error and the correct name of the Respondent is Visionstream Pty Limited as that was the company named in the employment agreement at the commencement of the employment.”(emphasis added)
Attached to that correspondence was a minute of proposed orders signed by the solicitors for both parties which provided as follows:
“1. Pursuant to rule 7.03, the Court being satisfied that the applicant has mistakenly identified the wrong respondent, Visionstream Pty Limited (ACN 062 604 193) be substituted for the initial respondent, Visionstream Australia Pty Limited (ACN 093 384 680) and the title of the proceedings be amended accordingly.
2. The respondent file and serve a Defence on or before 27 March 2017.
3. The Applicant file and serve any Reply on or before 3 April 2017.
4. The Applicant file and serve outlines of the evidence of each witness she intends to call, submissions and any other documents on which she intends to rely on or before 1 May 2017.
5. The Respondent file and serve outlines of the evidence of each witness it intends to call, submissions and any other documents on which it intends to rely on or before 5 June 2017.
6. The matter be listed for trial on a date to be fixed by the Court not before 19 June 2017, with an estimate of 3 days.
7. The parties have liberty to apply.”
For reasons that will become clear presently, on receipt of that correspondence the parties were informed those orders would not be made and the matter would remain listed for the first Court date 22 February 2017.
First Court date
At the first Court date Mr Anderson of Counsel appeared on behalf of the applicant and Mr Lange, Solicitor appeared on behalf of the respondent. Given the above and, having heard from the parties, as it seemed the material raised a real question as to whether the Court had jurisdiction, the Court made the following orders:
“THE COURT ORDERS THAT:
1. The applicant shall file and serve an outline of submissions addressing the issue of jurisdiction by 22 March 2017.
2. The respondent shall file and serve an outline of submissions addressing the issue of jurisdiction by 24 April 2017.
3. The applicant shall file and serve anything in reply by 4 May 2017.
4. The proceeding be listed for a jurisdictional hearing in the Federal Circuit Court of Australia at Melbourne at 10:00 am on 12 May 2017…”
Submissions
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 Background
1. 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 Law
13. 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; and
b. Is satisfied that:
i. The mistake sought to be corrected was genuine; and
ii. 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. Consideration
30. 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. Conclusion
41. 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.”
Whilst the respondents’ solicitors had signed the letter referred to earlier, at the directions hearing on 22 February 2017 and in written submissions the respondent’s position was different. In submissions filed on 24 April 2017 the respondent contended as follows:
“1. These submissions address the question of whether the court is empowered by rules 7.01 and 7.03 of the Federal Circuit Court Rules 2001 (Court Rules) to amend the name of the employer respondent to a general protections dismissal application, to an entity not specified in the certificate (Section 368 Certificate) issued by the Fair Work Commission (Commission) under s.368(3) of the Fair Work Act 2009 (Cth) (FW Act).
2. Specifically, the Section 368 Certificate in this matter specified the respondent to the dispute to be Visionstream (Australia) Pty Ltd (Visionstream Australia), consistent with the applicant’s Form F8 application, and contrary to the respondent’s Form F8A response, which stated that the relevant employing entity had been Visionstream Pty Ltd (Visionstream), and not Visionstream Australia.
3. The respondent submits that the court should not amend the name of the respondent as sought by the applicant. Such an amendment would not be appropriate due to a lack of jurisdiction to adjudicate a dispute:
(a) involving an employer respondent not specified in the Section 368 Certificate; and
(b) not relating to the employer respondent specified in the Section 368 Certificate,
for the reasons set out below.
Factual background
4. On 1 September 2016, the applicant filed a general protections application with the Commission under section 365 of the FW Act to deal with contraventions involving dismissal (Dismissal Dispute Application).
5. The application named Visionstream Australia as the respondent and as the applicant’s former employer.
6. The employer response was filed in the name of the actual former employer, Visionstream.
7. At no stage has Visionstream Australia been represented to the Applicant as her employer:
(a) the applicant’s letter of offer was entered into on Visionstream letterhead and clearly stated that Visionstream was the employing entity, at annexure A;
(b) the applicant’s email signature throughout employment specified Visionstream as the relevant entity and not Visionstream Australia (an example of which is at annexure B);
(c) the letter notifying the applicant’s solicitors of the outcome of an independent investigation in relation to allegations made by the applicant, as late as 6 October 2016, referred to the applicant’s employment, specifically with Visionstream (and not Visionstream Australia), at annexure C;
(d) the letter terminating the applicant’s employment, at annexure D, did not refer to Visionstream Australia as the employing entity. It was on the same letterhead as the other documentation referred to above, and was silent as to the identity of the applicant’s employer - though the signature of the author, Steve Grabar, indicated that he worked for Visionstream Australia.
8. The Dismissal Dispute Application was conciliated by the Commission on 11 November 2016. As no settlement was reached between the parties, the Commission issued a Section 368 Certificate, which named the respondent as Visionstream Australia, consistent with the applicant’s Form F8 application (which had not been amended by her). It is not apparent that there was any attempt to have the Section 368 Certificate re-issued with the name of the employer.
9. On 28 November 2016 the applicant filed an application in this court. The application incorrectly named the respondent and employer as Visionstream Australia, consistent with the Section 368 Certificate.
Overview of power to amend under the Court Rules
10. The court may amend the name of the respondent as sought by the applicant pursuant to the power conferred on the court by rules 7.01 and 7.03(2) of the Court Rules - provided that the Court is satisfied that:
(a) the amendment is appropriate; and
(b) 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 respondent.
Appropriateness of amendment
11. On the question of the appropriateness of the amendment, it is submitted that the court cannot be satisfied that the amendment would be appropriate in circumstances where the court would have no jurisdiction to adjudicate the dispute.
12. That is to say, if the court considers that it would be beyond jurisdiction to adjudicate a dismissal dispute involving an employer not specified in the Section 368 Certificate, then it cannot be satisfied that the amendment would be appropriate. In these circumstances, it is submitted that the court would neither be empowered to make the amendment, nor to adjudicate the dispute should it determine to make the amendment.
13. Accordingly, the critical issue that falls to be determined by this court is whether it is beyond jurisdiction for the court to adjudicate a dismissal dispute in relation to Visionstream in all of the circumstances.
Mistake
14. On the question of mistake, the applicant claims that she (or her solicitors) made a mistake within the meaning of rule 7.03(2), to which the respondent notes the following:
(a) Visionstream put not only the applicant, but her legal advisors, on notice, as early as 9 September 2016 (when it served its Form F8A response), that the correct respondent was Visionstream and not Visionstream Australia. That Visionstream Pty Ltd was the employer was consistent with the terms of the applicant’s contract of employment and a range of other documentation, as noted above;
(b) there should therefore have been no doubt as to the identity of the applicant’s former employer, despite the signature of the author of the termination letter. The applicant was legally represented at all material times. Proceeding in the Commission against the wrong entity, and continuing along that course despite notification of the true identity of the employer, disclosed, at best, a lack of attention to necessary detail.[17]
[17] See Poole v Rod Baker & Co (t/as Higgins Insulation) (2011) 207 IR 264 per O’Sullivan J. at [27]
15. Mistake should be subscribed its ordinary meaning, which relative to this proceeding, means a “under a misconception”, “make an error”, or “being under a misapprehension”.[18] The applicant knew and disregarded the knowledge of the correct employer. No error, misconception or misapprehension ever arose.
[18] ‘Mistake’, Shorter Oxford English Dictionary, 6th ed, Oxford University Press, 2007.
Jurisdiction of the court
16. In determining proceedings, it is the Court’s first duty to be satisfied that it has jurisdiction to deal with the subject matter of the proceeding.[19]
[19] per Lucev FM in Rentuza v Westside Auto Wholesale (2009) 236 FLR 231 at [23].
17. It is well established that:
(a) a general protections court application in respect of a dismissal dispute (where no interim injunction is sought) must not be made unless the Commission has issued a certificate under s.368(3)(a) in relation to the particular dispute;[20]
[20] FW Act s.370
(b) the section 368 certificate is an essential requirement in relation to a general protections court application under s.371, without which the court does not have jurisdiction to adjudicate the application.[21]
[21] Shea v TruEnergy Services Pty Ltd (2012) 204 FCR 456 (Shea) per Dodds-Streeton J at [60]-[61]; Rentuza v Westside Auto Wholesale (2009) 236 FLR 231 at 237 per Lucev FM
18. It is therefore unsurprising that the courts have consistently held that that they have no jurisdiction to determine dismissal disputes (and certain other disputes which have similar jurisdictional prerequisites) in the absence of a valid certificate. The applicant in her submissions refers to a number of authorities to this effect.
19. The issue before this court is what constitutes a ‘valid certificate’ for these purposes.
20. Of the cases cited in the applicants’ submissions, only Wills v Passeck [2011] FMCA 39 (Wills) and Poole v Rob Baker & Co (2011) 207 IR 264 (Poole) concerned employers who had not been specified in the relevant certificates.
21. Although in Wills, the court dismissed the application because the applicant had provided the wrong certificate (the applicant had provided a section 369 certificate and not a section 777 certificate as required), the court was also clearly concerned about the fact that the certificate specified a different respondent to that named in the court application.[22]
[22] At [4]
22. In Poole, the applicant named the respondent as “Rod Baker and Co trading as Higgins Insulation”, which was also the named respondent on the relevant certificate. However, the actual employer had been Higgins Insulation (Vic) Pty Ltd.
23. In Poole, Your Honour noted your concerns that:
A jurisdictional prerequisite to the exercise of the Court’s jurisdiction to deal with the application (even assuming the name of the respondent could be amended) is a section 369 certificate. In this case it is not controversial that the certificate that was filed with the application does not name the correct employer or respondent.
Without a proper certificate the Court does not have jurisdiction to deal with the general protections court application…[23]
[23] [24] and [25]
24. Ultimately, the application was discontinued and the court was not presented with full argument on the issue of jurisdiction.
25. The respondent submits that the failure to name the correct employer respondent in the Section 368 Certificate, where all parties agree the specified party was not the employer, necessarily means that the certificate is not a “proper certificate” within the meaning of Poole.
26. This, it is submitted, is the effect of the relevant provisions of the FW Act, which are appended as Appendix A. Specifically:
(a) section 365 provides for an application to be made to the Commission to deal with a dispute about a dismissal allegedly in contravention of the general protection provisions;
(b) the Commission must deal with the dispute other than by arbitration pursuant to s. 368(1);
(c) if satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, the Commission must issue a certificate to that effect (s.368(3)(a));
(d) if the Commission considers that arbitration or a general protections court application in relation to the dispute would not have a reasonable prospect of success, the Commission must notify the parties accordingly (s.368(3)(b));
(e) subject to the requirements of s.369(1)(c) and (d) the Commission may arbitrate the dispute if the Commission issues a Section 368 Certificate and the parties notify the Commission that they agree to the Commission arbitrating the dispute (s.369);
(f) a person entitled to apply to the Commission under s.365 must not make a general protections court application (not including an application for an interim injunction) in relation to the dispute unless the Commission has issued a Section 368 Certificate in relation to the dispute (s.370).
27. As can be seen from the above summary, the definition of “the dispute” is critical to understanding the nature of the court’s ultimate jurisdiction, which is “in relation to” that dispute.
28. As the court noted in Bognar v Skilled Offshore Pty Ltd & Anor [2016] FCCA 2962 (Bognar), the words ”in relation to the dispute” in s.370 of the FW Act, relate to the arbitral dispute before the Commission, not the judicial controversy that follows.[24]
[24] At [48]
29. The dispute referred to in ss.365, 368-70 of the FW Act “is a dispute concerning a person’s dismissal allegedly in contravention of Part 3-1”.[25] That dispute must necessarily involve at least one employee party and employer party. The parties are a necessary parameter to the dispute, and it is submitted that the reference to “the dispute” includes the parties to that dispute.
[25] Shea v TruEnergy Services Pty Ltd (No 1) (2012) 204 FCR 456 at [48]
30. That the parties must be identified is a necessary implication arising from ss.368(3)(b) and 369 of the FW Act. For the Commission to notify the “parties” of prospects, and for “the parties” to elect to follow the arbitral route to resolution, those parties must necessarily be identified by the Section 368 Certificate.
31. As Deputy President Lawrence explained in Kenneth Autterson v ABC Dental Alliance Pty Ltd t/as ABC Dental[26] in order to grant a relevant certificate, the Commission must first identify the parties. In that case, there was a dispute about the identity of the employer and the nature of various contractual relationships. Consistent with Full Bench authority, the Commission determined that it was not its role to resolve these matters, but it was, in the Commission’s view, appropriate to add a third respondent and grant an extension of time in order that the issue may fall to be determined by the court.
[26] [2013] FWC 9330 at [27]
32. It is submitted that none of the authorities relied on by the applicant in her submissions are inconsistent with the above conclusions. Indeed, those decisions cited by the applicant which are relevant to the jurisdictional issues raised in this proceeding, are supportive of the above submissions.
Bognar v Skilled Offshore Pty Ltd & Anor [2016] FCCA 2962 (Bognar)
33. Bognar concerned the issue of accessorial liability and, specifically, whether a court application in relation to dismissal dispute may be brought against accessories who were not specified as respondents in the Section 368 Certificate.
34. Any suggestion by the applicant that Bognar is authority for the proposition that a court application may be brought against any (alleged employer) respondents - provided that the Commission has issued a Section 368 Certificate - is not sustainable.
35. The relevance of Bognar to the facts in the current proceeding is that:
…[the fact that accessorial liability under s.550 has specific elements and distinguishable parties] does not however operate to limit the Court’s jurisdiction to the specific parties the subject of the section 368 Certificate. Rather, the section 368 Certificate is a pre-requisite to the jurisdiction of this Court being invoked, but once invoked that jurisdiction includes the capacity for other parties to be added to the application for orders for contravention of a civil remedy provision under s 550 of the FW Act.[27]
[27] At [47]
36. Critical to the court’s reasoning in Bognar was that accessorial liability cannot actually be the subject of an application to the Commission – section 550 is specific to court proceedings. Accordingly, accessories are not to be listed as respondents in the Form F8 application, or the Section 368 Certificate. They can (obviously) be respondents to any court application in relation to the dispute.
37. In fact, in Bognar, Lucev J. accepted that:
(a) a “proper certificate is necessary to found jurisdiction”; and
(b) Poole was an application of these “basic principles”.[28]
[28] At [55]
38. That is, Bognar is supportive of the view that a Section 368 Certificate must be issued in the name of the correct employer respondent to found jurisdiction.
United Voice v J Markoff Family Trust T/a Belrose Care [2012] FMCA 406 (United Voice); Transport Workers Union v School Bus Contractors Pty Ltd (2011) 246 FLR 430 (TWU)
39. In United Voice, the relevant certificate named the correct employer respondent, but the court application contained an error in the name of the respondent. Similarly, in TWU, the court application specified the incorrect name of the employer respondent, but again the relevant certificate specified the correct name. These cases are clearly distinguishable from the present circumstances.
40. In United Voice, Lucev FM did, however, emphasise the importance of an employer being correctly named in the relevant certificate, as follows:
The importance of the employer being correctly named under [sic] Section 369 Certificate ought not be under-emphasised…it is now trite law, a section 369 Certificate is a jurisdictional prerequisite to the making of a valid general protections court application…[29]
[29] At [3]
Kanapathy on behalf of Rajandran Kanapathy v in de Braekt (No 3) [2012] FMCA 1213 (“Kanapathy”).
41. Kanapathy concerned an entirely different legislative framework and factual circumstances, where the jurisdictional issue the current concern of this court did not arise. The extracted paragraphs concerning rule 7.03 in the applicant’s submissions are therefore taken entirely out of context.
Shea v TruEnergy Services Pty Ltd (No 1) (2012) 204 FCR 456 (Shea)
42. Shea was not a case which concerned the identity of the respondent and alignment or otherwise with the respondent designated in the Section 368 Certificate (or any like certificate). Rather, Shea concerned the question of whether the scope of the dispute the subject of the court application was limited to those matters specified in the Form F8 application to the Commission. Dodds-Streeton J held that the court application was not so limited.
43. Specifically, Her Honour held that:
(a) no such limitation was inherent in ss. 365, 366, 388 which, indeed did not require any elaboration of the dispute between the parties;[30] and
(b) even if the dispute the subject of the court application was limited to the substantive claims in the application to the Commission (or Fair Work Australia as it was then), the fact that any court application is made “in relation to the dispute”, which has a very wide import, meant that the court application “could validly include new, additional, or different claims from those in the FWA application, provided the essential basis of the dispute in the FWA application remained.”[31] [emphasis added]
44. It is submitted that one of the “essential bases” of any dispute is the parties to that dispute. Accordingly, no court application may be made naming an employer respondent which was not a party to the dispute, and subject to the Section 368 Certificate.
Conclusion
45. For the reasons set out above, the FW Act requires the Commission to:
(a) identify the parties to the dispute; and
[30] Shea at [69]
[31] Shea at [70]
(b) frame that dispute in the Section 368 Certificate.
46. The importance of the Section 368 Certificate, and that it must correctly identify the parties to the dispute, is self evident – given that it is this document which establishes the bounds of the court’s jurisdiction.
47. In this case, the Section 368 Certificate was issued in the correct name of a member of the Visionstream group. That entity was not the employing entity and the respondent made this known to both the Commission and the Applicant. Despite this, the applicant persisted in its prosecution of Visionstream Australia and the Section 368 Certificate identified Visionstream Australia as the relevant party to the dispute. The applicant now accepts that the employer was indeed Visionstream.
48. In light of the above, it is submitted that no valid Section 368 Certificate has been issued, and the court has no jurisdiction to determine this proceeding.[32] Amending the name of the respondent cannot cure this defect. Accordingly, it is submitted that the court cannot be satisfied that the amendment is appropriate.
49. Further, the applicant has not illustrated that she has committed a genuine mistake and indeed, she and her representatives know and knew that the incorrect respondent had been named.
50. There is no jurisdiction for the Court to permit a substitution, and in any case there is no genuine mistake which would allow the Court to do so even if a correct Section 368 Certificate had been issued. No amendment should be made and the proceeding should be dismissed on the basis that the present respondent is not the employer and the claim is therefore hopeless.”
[32] Cf the decision of Riethmuller FM to contrary effect in Rutherford v Hausner (2011) 212 IR 343.
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.
Conclusion
20. 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.”
[35] Shea at [67].
Consideration
At the jurisdictional hearing today Mr Irving of Counsel appeared on behalf of the applicant and Ms Preston of Counsel appeared on behalf of the respondent.
The material that the parties relied on, along with the detailed submissions made today supplementing that material, have all been taken into account.[36]
[36] See Exhibit A1, A2, A3 and A4 along with Exhibit R4.
The applicant seeks leave to amend her application to change the name of the respondent from Visionstream Australia Pty Limited (ACN 093 384 680) to Visionstream Pty Limited (ACN 062 604 193).
The respondent argues that any amendment to the application is pointless as the applicant does not have a certificate issued by the FWC naming the applicant’s actual employer and therefore the Court does not have jurisdiction.
In this case it is not controversial that the applicant’s correct employer is not the current respondent. It is also not controversial that the other party referred to in the s.368 certificate was not the applicant’s employer.
Rule 7.01 of the Federal Circuit Court Rules 2001 (“the Rules”) which the applicant seeks to invoke provides the Court with power to allow an amendment to correct the name of a party. Rule 7.03 of the Rules deals with amendment after the expiry of a limitation period, and is in the following terms:
“7.03 Amendment after limitation period
(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.
Contrary to the impression sought to be created in the applicant’s submissions in United Voice v J Markoff Family Trust T/a Belrose Care [2012] FMCA 406 (“United Voice”) Lucev FM (as His Honour then was) actually said (of the predecessor provisions in the FW Act to those under consideration here):
“3. The importance of the employer being correctly named under section 369 Certificate ought not to be under-emphasised and hence the necessity for these comments due to the significant number of applications which are presently coming before this Court with the respondent incorrectly named. As is now trite law, a section 369 Certificate is a jurisdictional prerequisite to the making of a valid general protections court application under Division 2, Part 4-1 of the FW Act. The Court refers to Stack v Michael Hill (Jeweller) Australia Pty Ltd, Pitrau v Barrick Mining Services Pty Ltd and Poole v Rod Baker and Co .
4. If the respondent is not correctly named in the section 369 Certificate, issues may arise as to whether:
a) Fair Work Australia had jurisdiction to deal with the matter and issue a certificate, that is, whether the applicant was an employee of the respondent and therefore capable of being dismissed by the respondent. That in itself is a matter upon which differing views have apparently been expressed at first instance before Fair Work Australia and the Court refers to Boyar v The House of Life and Hanson v Apex Cleaning and Polishing Supplies Pty Ltd t/as Apex Cleaning Supplies ; and
b) this Court has jurisdiction to entertain the application that is whether the applicant is a person entitled to apply under section 365 of the FW Act to Fair Work Australia to deal with the dispute as indicated in section 371 of the FW Act.
5. In this case, the respondent employer has been correctly named on the section 369 Certificate, however, as indicated above, the respondent employer has not been correctly named in the application to this Court.
…” (emphasis added)
Ultimately His Honour granted leave to amend the name of the respondent in those proceedings. However, unlike the present case the employer in that case had been referred to correctly in the certificate issued by the FWC.
In submissions the applicant also referred inter alia to the decision in Shea v TruEnergy Services Pty Ltd (No.1)[37]. The question raised in Shea was succinctly summarised by the Federal Court as follows:
[37] [2012] FCA 628 (“Shea”).
“This application raises the question of the necessary degree of conformity between:
(a) the claims made in an application to Fair Work Australia (“FWA”) pursuant to s 365 of the Fair Work Act 2009 (Cth) (“the Act”) alleging that a person’s dismissal was in contravention of Pt 3-1 of the Act; and
(b) the claims made in a subsequent “general protections court application in relation to the dispute” within the meaning of s 371(1) of the Act.[38]”
[38] Shea at para.1 per Dodds-Streeton J.
In Shea (supra) the Federal Court observed that the section 369 certificate was a pre-condition to the Federal Court’s jurisdiction to deal with a dispute [39] which must be about the same specified dismissal.[40]
[39] Shea at paras.26-29 per Dodds-Streeton J, citing Newman v East Yarra Friendly Society Pty Ltd t/as My Chemist Pharmacy [2011] FCA 1262 at para.5 per North J (“East Yarra Friendly Society”).
[40] See paragraph 84 in Shea.
Counsel for the applicant made detailed submissions in relation to the construction of the relevant provisions of the FW Act which it was contended supported his client’s claim this Court had jurisdiction to make the orders sought.
Counsel for the respondent rejected the submission for this particular construction of the FW Act. Counsel for the respondent submitted that, read as a whole, the scheme of the FW Act is that a “dispute” is intended by Parliament first to be the subject of conciliation in the FWC, if possible to finality, with judicial proceedings against the parties to the dispute only being possible as a sequel, once the FWC has reached the satisfaction referred to in s 368 and issued a certificate accordingly. It would, so the submission as I understood it went, be antithetical to the scheme of the FW Act if, notwithstanding a conciliation to finality against the named parties to the dispute in the FWC, it were possible for an aggrieved person nonetheless to invoke an exercise of judicial power against persons who were never parties to the ordained conciliation process as evidenced by the certificate.
It seems to me that the submissions of the applicant and the decisions referred to, did not address adequately the question whether in fact there is in this case an application between identified parties within jurisdiction.
In Beggs v Login Systems Pty Ltd [2013] FCCA 526 Riley J in addressing the question of whether the Court had jurisdiction to consider whether to grant leave to allow the applicant to amend his application to a general protections application considered the decisions in Maher v Mulgowie Pty Ltd [2010] FCA 439; Newman v East Yarra Friendly Society Trading as My Chemist Pharmacy [2011] FCA 1262; Hill v Compass Ten Pty Ltd [2012] FCA 761; Reeve v Ramsay Health Care Ltd [2013] FCA 499; Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186 (“Pitrau”); Adam v Apple Pty Ltd [2012] FMCA 881 and Shea. Her Honour determined that the decision in Pitrau set out the proper approach.
In Pitrau it was said:
“50. It is well settled that a Section 369 Certificate is a jurisdictional prerequisite to a general protections court application being made.
51. The Court cannot issue a Section 369 Certificate. Section 369 of the FW Act provides as follows:
If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.
52. Under s.369 of the FW Act the issuance of a Section 369 Certificate is mandatory if FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. But it is only FWA that has power to issue a Section 369 Certificate. The issuance of a Section 369 Certificate marks the end of the conciliation or mediation functions of FWA, and is the prerequisite for the exercise of judicial power by this Court (or the Federal Court).”
In Pang v Kerry Ingredients Australia Pty Ltd [2015] FCCA 824 it was noted:
“…[the] certificate must contain sufficient information to enable the Court to conclude as a matter of fact that the certificate issued identifies a particular dispute commenced in accordance with s.365 of the Fair Work Act. “ (emphasis added)
In Ward v St Catherine’s School [2016] FCA 790 it was said of the provisions in s.370 of the FW Act:
“It is significant that the certificate required by s 370(a)(i) to trigger a person’s entitlement to make an application to the Court, is a certificate in which the Commission expresses its satisfaction about a state of affairs concerning the ability of the dispute to be resolved by means other than arbitration. The entitlement under s 370 of the Act to make a general protections court application, in other words, is made to depend upon the Commission’s evaluation of the facts and circumstances bearing upon the prospects of the parties resolving their dispute about dismissal by means other than arbitration and proceedings in Court (unless their application included an application for an interim injunction). (emphasis added).
Section 365 provides for any person who has been dismissed to apply to the FWC for the “FWC to deal with the dismissal dispute”. The FWC had jurisdiction to deal with the claim of the applicant as a dispute between the applicant and her employer. However, it is conceded the application that was lodged with FWC on her behalf (and the certificate that was issued by the FWC) named an entity as a matter of fact that was not her employer. Counsel for the applicant, despite his artful submissions, did not submit it was permissible for the Court to go behind the FWC certificate or that there was authority on all fours with this case.
I note Counsel for the applicant placed great weight on the decision in Shea (supra) but conceded it did not consider the issue in this case. The difficulty confronting the applicant in this matter (including the application for resort to the relevant rules of the Court to change the name of the parties) is that it is not disputed that the certificate, which is the jurisdictional prerequisite for the Court to deal with this matter, as a matter of fact named the wrong party.[41]
[41] Also conceivably given the applicant’s concession the respondent named in it was not a party to a dismissal dispute for the purposes of s.365.
The applicant doesn’t dispute that her former employer was not referred to in the certificate issued by the FWC (or in the proceedings initiated on her behalf by her solicitor in the FWC) or when proceedings were commenced in this Court.[42]
[42] I note the applicant’s submissions in Exhibit R2 at paragraph 1, refer to attempts after these proceedings were commenced to amend the FWC certificate.
In the circumstances I am not satisfied it is appropriate to allow the applicant resort to the Rules to correct an error in the name of the respondent where there is no jurisdiction to deal with the dismissal dispute as the certificate did not refer to the applicant’s former employer or the correct respondent.[43]
[43] See as was noted in United Voice at [9] that case was restricted to its own facts as was the decision in Rutherford v Hausner (2011) 212 IR 343.
Given the absence of binding authority in support of the construction of the relevant provisions urged on the Court by the applicant, I accept the respondent’s submissions and find that the Court should not amend the name of the respondent as sought by the applicant. Such an amendment would not be appropriate due to a lack of jurisdiction where to do so would mean these proceedings involve a respondent not specified in the section 368 certificate; and they do not relate to the respondent specified in the section 368 certificate. For the reasons set out above I reject the applicant’s submissions and order that the application filed 29 November 2016 should be dismissed.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 15 May 2017
See Pitrau v Barrick Mining Services Pty Ltd (2012) 259 FLR 447 at 470 per Lucev FM; [2012] FMCA 186 at para.50 per Lucev FM (citing East Yarra Friendly Society); Poole v Rod Baker & Co (2011) 207 IR 264 at 270 per O’Sullivan FM; [2011] FMCA 357 at paras.24-25 per O’Sullivan FM.
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