Mohammed Dean v Print Production Australia Pty Ltd T/A On-Demand

[2016] FWC 7170

[2016] FWC 7170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mohammed Dean
v
Print Production Australia Pty Ltd T/A On-Demand
(U2016/8675)

COMMISSIONER WILSON MELBOURNE, 25 OCTOBER 2016

Application for relief from unfair dismissal - voluntary liquidation - application stayed.

[1] On 2 August 2016, Mr Mohammed Dean made an application for unfair dismissal remedy under section 394 of the Fair Work Act 2009. The application discloses that Mr Dean’s employment was terminated by Print Production Pty Ltd (ACN 601 407 756), trading as On-Demand, on 1 August 2016.

[2] On 1 September 2016, the Fair Work Commission received correspondence advising that Production Printing (Aust) Pty Ltd (ACN 601 407 756), trading as On Demand, was in voluntary liquidation.

[3] Rodgers Reidy, the liquidator, provided the Commission with a copy of the ASIC Form 505, External Administration Appointment of an external administrator, which evidences the appointment of a liquidator on 26 August 2016. The Commission was also provided with a copy of the ASIC Form 509D, Notice of special resolution to wind up a company, also of 26 August 2016.

[4] On 8 September 2016, the Commission wrote to Mr Dean advising him that creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Dean to section 500(2) of the Corporations Act 2001 (Cth), and the Commission’s preliminary view that his application could not proceed without leave of the Court.

[5] Mr Dean was invited to be heard in relation to the Commission’s position if he disagreed.

[6] On 13 September 2016, Mr Dean advised the Commission that he wished for his matter be set down for jurisdictional hearing. An alternative view was sought from Mr Dean to that indicated in the Commission’s correspondence of 8 September, and a jurisdiction hearing was held on Wednesday, 19 October 2016, which was attended by Mr Dean and a representative of Rodgers Reidy.

[7] Section 500(2) of the Corporations Act 2001 provides as follows:

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

[8] Section 58AA of the Corporations Act 2001 provides the following definition in relation to the meaning of “court” and “Court”:

“58AA Meaning of court and Court

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

“court” means any court.

“Court” means any of the following courts:

(a) the Federal Court;

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

(c) the Family Court of Australia;

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

(2) Except where there is a clear expression of a contrary intention (for example, by use of the expression “the Court”), proceedings in relation to a matter under this Act may, subject to Part 9.7, be brought in any court.

Note: The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts.”

[9] Having regard to this provision and of the Full Bench decision of Smith 1, I am satisfied that the Commission is not a “Court” and is therefore unable to grant leave as prescribed in section 500(2) of the Corporations Act 2001.

[10] In Silalahi v CMI Industrial (Forge) 2, the then Commissioner Jones considered relevant authorities and found that an application pursuant to section 394 of the Fair Work Act 2009 falls within the meaning of “civil proceedings” in section 500(2) of the Corporations Act 2001.

[11] As noted earlier, Mr Dean’s application, made pursuant to section 394 of the Fair Work Act 2009, was filed on 2 August 2016, and the passing of the resolution for winding up occurred on 26 August 2016.

[12] Taking into account the provisions set out in section 500(2) of the Corporations Act 2001, I am satisfied that Mr Dean’s application cannot proceed any further in the Commission except by leave of the Court.

[13] Therefore, Mr Dean’s application under section 394 of the Fair Work Act 2009 is stayed until leave of the Court is granted.

COMMISSIONER

 1   Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11]-[16].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR586157>