Richard Old v AWA Limited (Administrators Appointed) PPB Advisory T/A AWA Limited

[2015] FWC 8367

[2015] FWC 8367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Old
v
AWA Limited (Administrators Appointed) PPB Advisory T/A AWA Limited
(U2014/1593)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 16 DECEMBER 2015

Application for relief from unfair dismissal – external administration – application stayed.

[1] On 6 May 2014, Mr Richard Old made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Old’s employment was terminated by AWA Limited (Administrators Appointed) PPB Advisory on 17 April 2014.

[2] Conciliation was listed, however, could not take place.

[3] On 3 July 2014, PPB Advisory filed a response to the application, noting that AWA was in liquidation.

[4] On 24 July 2014, a Fair Work Commission staff member spoke with PPB Advisory who advised the liquidation was voluntary.

[5] On 25 July 2014, the Commission wrote to Mr Old and advised him that creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Old to section 500(2) of the Corporations Act 2001 (the Corporations Act).

[6] Mr Old was invited to be heard in relation to the Commission’s position if he disagreed. Mr Old did not respond to the Commission’s correspondence.

[7] On 7 December 2015, PPB Advisory provided the Commission with a copy of the ASIC Form 505, External Administration, Appointment of an external administrator which indicates that the creditors had resolved to voluntarily wind up the company on 30 May 2014.

[8] s.500(2) of the Corporations Act 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.

[9] Section 58AA of the Corporations Act 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.”

[10] 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 s.500(2) of the Corporations Act.

[11] 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 Act falls within the meaning of “civil proceedings” in section 500(2) of the Corporations Act.

[12] Mr Old’s application pursuant to section 394 of the Act was filed on 6 May 2014 and the passing of the resolution for winding up occurred on 30 May 2014.

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

[14] Therefore, Mr Old’s application under section 394 of the Act is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

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

 2   [2012] FWA 7275 at [11] - [16].

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