Rutherford v Hausner
[2011] FMCA 1033
•23 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RUTHERFORD v HAUSNER | [2011] FMCA 1033 |
| INDUSTRIAL LAW – Application under Fair Work Act 2009 – issue of certificate under section 369 – seek leave to amend application to change the name of the respondent. |
| Fair Work Act 2009, ss.3, 340, 351, 365, 369, 371, 772, 779(1)(a) Federal Magistrates Court Rules 2011, rr.1.03, 7.01, 7.03, 45.07 |
| Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 |
| Applicant: | BELINDA RUTHERFORD |
| Respondent: | PETER HAUSNER |
| File Number: | MLG 1301 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 21 November 2011 |
| Date of Last Submission: | 21 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dowsett of Counsel |
| Solicitors for the Applicant: | Wightons Lawyers |
| Counsel for the Respondent: | Mr Tracey of Counsel |
| Solicitors for the Respondent: | Herbert Geer |
ORDERS
The applicant be granted leave under Rule 7.03 of the Federal Magistrates Court Rules 2001 to amend her application filed on 6 September 2011 by:
(a)Deleting the Respondent “Peter Hausner (Godfrey Hurst)” and
(b)Inserting as the Respondent “Riverside Textiles Pty Ltd (ACN 068 232 673)”.
The Applicant be granted leave under Rule 7.01 of the Federal Magistrates Court Rules 2001 to amend the “Form 2” filed on 6 September 2011 by:
(a)Changing the name of the employer at item 3 by deleting “Godfrey Hurst T/A Riverside Textiles Pty Ltd” and inserting “Riverside Textiles Pty Ltd (ACN 068 232 673)”; and
(b)By deleting the current answers to items 12 and 13 (relevant legislation) and inserting:
12: Pursuant to Part 3-1 (Division 3 “Workplace rights” and Division 5 “Other protections) of the Fair Work Act 2009 (the Act) the Respondent was prohibited from taking adverse action against the Applicant:
(i)on the grounds that she had, and exercised, a workplace right to take personal/carer’s leave; and/or
(ii)because of her family or carer’s responsibilities.
13: Sections 340, 351.
(c)By including in the answer to item 14 (remedy sought):
· An order pursuant to paragraph 545(2)(c) of the Act reinstating the Applicant to the position she held immediately prior to the termination; and
· An order pursuant to subsection 539(2) and section 546 of the Act that the Respondent pay the Applicant a pecuniary penalty for the contravention section 340 and/or section 351 of the Act.
The Court declares that, for the purposes of section 371 of the Act, the certificate issued by Fair Work Australia on 23 August 2011 in matter number C2011/5028 was issued ‘in relation to the dispute’ that is the subject of these proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1301 of 2011
| BELINDA RUTHERFORD |
Applicant
And
| PETER HAUSNER |
Respondent
REASONS FOR JUDGMENT
The applicant seeks leave to amend her application to change the name of the respondent from “Peter Hausner (Godfrey Hurst)” to “Riverside Textiles Pty Ltd (ACN 068232673)”. The applicant also seeks to make consequential amendments in changing the name of the employer at item 3 of her Form 2 from “Godfrey Hurst TA Riverside Textiles Pty Ltd” to “Riverside Textiles Pty Ltd ACN 068232673.” Other non-contentious amendments are sought to more appropriately identify the nature of the claim.
In addition, the applicant seeks a declaration that:
…for the purposes of section 371 of the [Fair Work] Act, the certificate issued by Fair Work Australia on 23 August 2011 in matter number C2011/5028 was issued “in relation to the dispute” that is the subject of these proceedings.
In substance, the difficulty that the applicant faces is that she has not named her correct employer in the application to Fair Work Australia or in this Court. The respondent, Peter Hausner, is employed as a manager in the business, which explains the reason that he was named in proceedings. Godfrey Hurst Australia Pty Ltd issued the applicant’s employment separation certificate describing “Riverside Textiles” as the business or trading name of Godfrey Hurst Australia Pty Ltd. It appears that Riverside Textiles Pty Ltd is in fact a member of a group of companies related to Godfrey Hurst Australia Pty Ltd. There is no dispute that the applicant’s actual employer was Riverside Textiles Pty Ltd.
The respondent argues that any amendment to the application is pointless as the applicant does not have a certificate issued by Fair Work Australia under s.369 of the Fair Work Act naming the proposed respondent and, therefore, is not able to issue the proceedings in accordance with s.371 of the Fair Work Act. It is appropriate to first deal with the question relating to the Fair Work Act before turning to consider the application to amend the name of the respondent in the proceedings.
The Statutory Framework of the Fair Work Act
The applicant brings her substantive claim pursuant to ss.340 and 351 of the Fair Work Act claiming that she was the subject of adverse action by the respondent on the grounds that she had exercised her workplace right to take personal or carer’s leave and, alternatively, because of her family or carer’s responsibilities. The legislative scheme provides that such claims must first be pursued at Fair Work Australia, which provides a process of alternative dispute resolution. This process is mandatory as s.371 prohibits the commencement of proceedings unless a certificate is issued under s.369:
371 [General protections court applications]
FWA conference to be held before application
(1) A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) FWA has issued a certificate under section 369 in relation to the dispute; or
(b) the general protections court application includes an application for an interim injunction.
…[emphasis added]
The specific power of Fair Work Australia to issue a certificate is contained in s.369 under the following terms:
369 [Certificate if dispute not resolved]
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.
Similar provisions appear in other parts of the legislative scheme, for example, ss.777 and 779 are in substantially the same terms with respect to the requirements for a certificate prior to court proceedings.
It is clear that the broad statutory scheme is to require that employment disputes of this nature are first pursued at Fair Work Australia through the conciliation conference process prior to court proceedings issuing.
As with many cases involving large corporate groups, there have been considerable difficulties in identifying the correct name of the actual legal entity that was the employer. In this case, various names have been used:
a)the employer issued a separation certificate describing the employer as “Godfrey Hurst Australia Pty Ltd trading as Riverside Textiles”;
b)“Godfrey Hurst t/a Riverside Textiles Proprietary Limited”, was the description given by the applicant of her employer to Fair Work Australia;
c)“Godfrey Hurst Australia t/a Riverside Textiles Pty Ltd” was used on the employer’s response in the heading, but “Riverside Textiles Pty Ltd” was set out as the legal and trading name of the respondent in the Fair Work proceedings;
d)“Godfrey Hurst t/a Riverside Textiles Proprietary Limited” was used as the title of the matter in the s.369 certificate;
e)Mr Peter Hausner, manager, Godfrey Hurst t/a Riverside Textiles Proprietary Limited was named as being the person notified on behalf of the employer of the s.369 certificate.
There is no disputing that the relevant employer’s representatives participated in the process at Fair Work Australia. Nor is there any dispute that it has been clear throughout that the matter concerns the employment relationship between the applicant and employer which forms part of the corporate group described or named in the proceedings.
It does not appear to be a case where, aside from the misdescription of the respondent on the various documents, there is any real question that the applicant and the respondent engaged in the relevant processes with Fair Work Australia.
The central question in this application is whether s.369 requires a certificate issued in the names of the actual parties, or simply a certificate which, in the facts and circumstances of the particular case has been issued “in relation to the dispute,” in the sense that the certificate has been issued following engagement of the relevant parties in the Fair Work Australia process.
In the Fair Work Act the objects are set out in s.3, which provides:
3 [Object of this Act]
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.
In order to define the relevant “dispute” under the Fair Work Act it is appropriate to have regard to the legislative scheme. In this case, s.772 prohibits termination of employment on various grounds with some limited exceptions. Section 365 provides for any person who has been dismissed to apply to Fair Work Australia for “Fair Work Australia to deal with the dispute.” Fair Work Australia had jurisdiction to deal with the claim of the applicant as a dispute between the applicant and her employer. It proceeded to do so. However, the application she lodged with Fair Work Australia named an entity that did not exist: on the documents there was no “dispute” within the meaning of the Act as a respondent by the name used did not exist.
However, it was clear that the employer understood that the claim was against it and lodged a Response in its proper name, Riverside Textiles Pty Ltd, and proceeded to engage in the process. I accept that it was open to the Commissioner of Fair Work Australia to amend the name and issue a certificate using the proper names of the parties however, unfortunately, a certificate using the name provided by the applicant initially to Fair Work Australia was used in the certificate.
Misnomers present peculiar problems in the law. As the High Court pointed out in Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231, a person can know another person by reason of their actual identity and one may also know a person by reference to their description and characteristics.
An example of the first category is where one may know a neighbour down the street, but be entirely incorrect about their correct name (a common occurrence in a multicultural society such as Australia where many people from non-English speaking backgrounds adopt an anglicised first name by which they become known, although it is not their true name in Australia on their birth certificate or passport or other form of legal documents). An example of the second category would be one’s employer. It is the latter case that is precisely what occurred here. The applicant knew throughout the proceedings that she was pursuing her former employer, and there appears to be no doubt that the former employer was also well aware that it was being pursued and therefore engaged in the processes appropriately.
In legal proceedings, when such events occur, leave to amend the proceedings to reflect the true names of the parties is appropriate. Whether such an amendment is required under the Fair Work Act is a separate question. The only purpose of the certificate under the Fair Work Act is to fulfil the statutory requirement which prohibits the commencement of legal proceedings in a court prior to obtaining a certificate in relation to the dispute. The practical purpose of the certificate is to confirm that the dispute has been the subject of conciliation at Fair Work Australia prior to legal proceedings commencing.
The conciliation that occurred at Fair Work Australia occurred between the applicant and her actual former employer. A certificate issued which, on the face of it, contains a name for the respondent that is nonsensical as a matter of law, however, the part of that name that does make sense, as a matter of law, is “Riverside Textiles Pty Ltd.” It is clear that the certificate was issued with respect to the dispute between the applicant and her employer, although there are errors on the face of the certificate.
The broad terms “in relation to” as used in s.371(1)(a) make clear that a technical or specific reading is not what was intended by the legislature, rather a purposive reading to ensure that proceedings are only commenced in the court if the employer and employee have been to conciliation at Fair Work Australia beforehand.
The interpretation I have accepted in this case preserves the intent of the legislation, of ensuring that a conciliation conference take place before the court proceedings, whilst reflecting Parliament’s intention by use of the words “in relation to” to ensure that the substantive purpose of the legislation was honoured without creating a regime providing potential technical defects or traps that would deny a person’s access to justice.
In this case, the certificate, together with the additional evidence and circumstances, is such that as a matter of fact I am able to conclude that the certificate, under s.369, is the certificate that has been issued in relation to the dispute that is sought to be litigated before the court. Ordinarily, it would be appropriate to ensure that this certificate was in the correct names of the parties to the proceedings so that no additional evidence or interlocutory hearings would be required on this issue. However, such technical defect does not, in my view, invalidate the proceedings nor present a technical defect of such magnitude that it cannot be remedied by additional evidence to demonstrate that the certificate is in fact in relation to the dispute. However, for this reason the findings in this case must be seen as limited to the specific actual circumstances before the court.
In the circumstances I find that the applicant is able to establish that she holds a certificate in relation to the dispute in the unusual circumstances of this case.
I turn, then, to consider the application to amend the name of the respondent in the proceedings.
Rule 45.06 of the Federal Magistrates Court Rules 2001 provides:
45.06[Application in relation to dismissal from employment in contravention of a general protection (Fair Work Act, s 539 (2), table, item 11)]
An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Fair Work Act must:
(a) be in accordance with the approved form; and
(b) be accompanied by:
(i) a claim in accordance with the approved form; and
(ii) unless the application includes an application for an interim injunction, a certificate issued by Fair Work Australia under section 369 of the Fair Work Act that provides that Fair Work Australia is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
The Federal Magistrates Court Rules, in r.45.07, appear to provide a similar requirement to that set out in the Fair Work Act. I do not accept that the Rules are intended to impose a more restrictive process than the Act.
However, even at its highest, the rule can be dispensed with under R1.06 of the Federal Magistrates Court Rules:
1.06 [Court may dispense with rules]
(1) The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
(2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding. [emphasis added]
I also take into consideration the objects of the Rules and the Act. The objects of the Rules are set out in R.1.03:
1.03 [Objects]
(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:
• to operate as informally as possible
• to use streamlined processes
• to encourage the use of appropriate dispute resolution procedures.
(3) The Court will apply the Rules in accordance with their objects.
(4) To assist the Court, the parties must:
• avoid undue delay, expense and technicality
• consider options for primary dispute resolution as early as possible.
(5) If appropriate, the Court will help to implement primary dispute resolution. [emphasis added]
In the absence of prejudice to a party, or adverse impact on the efficient running of the court generally, and in circumstances where at least some explanation has been given for the error, it is difficult to see why the court would not dispense with such a rule to ensure that the intent and operation of the underlying legislative scheme is preserved.
In this case there is no prejudice to the employer who has participated throughout the Fair Work Australia process. There is an explanation for the error, as the relevant entity is a related entity to those named.
To the extent that it is necessary in this case I would, therefore, dispense with the operation of r.45.07 of the Federal Magistrates Court Rules.
Having concluded that the certificate is sufficient, in the unusual circumstances of this case, I turn to consider the application to amend the name of the respondent. In this case the time for commencing proceedings has expired as s.371(2) provides:
371 [General protections court applications]
(1) …
(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.
In this case, the court has a discretion to extend time for proceedings to be started afresh under the Act, if needed. The court may also allow an amendment under R.7.03, which provides:
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.
(3) The Court may give leave to make an amendment changing the capacity in which a party seeks orders (whether as applicant or respondent by counterclaim) if:
(a) the Court considers it appropriate; and
(b) the capacity in which the party will seek orders is one in which, at the time when the proceeding was started by the party, the party might have sought orders.
(4) The Court may give leave to make an amendment even if the effect is to include a new cause of action, if:
(a) the Court considers it appropriate; and
(b) the new cause of action arises out of the same, or substantially the same, facts as a cause of action for which relief has already been claimed in the proceeding by the party seeking leave to amend.
For the reasons already stated, I am satisfied that the mistake was genuine and not misleading. There was never any real doubt on the part of the respondent as to who was the proper respondent.
In light of the objects of the Act and the Rules, the absence of any prejudice to the respondent or significant impact on the efficient running of the court, I find that it is appropriate to allow the amendment of the respondent’s name as sought by the applicant.
For the same reasons, the amendments sought under R.7.01 should be allowed to the extent that they are consequential on the change of the respondent’s name. The balance of the amendments are simply refining or re-casting the applicant’s case and should be permitted under R.7.01 at this early stage of the proceedings.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 23 December 2011
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