Steven Withers v Innovative Mining Solutions Pty Ltd

[2013] FWC 9367

[2013] FWC 9367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Withers
v
Innovative Mining Solutions Pty Ltd
(U2012/14703)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 NOVEMBER 2013

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

[1] On 29 October 2012, Mr Steven Withers made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Wither’s employment was terminated by Innovative Mining Solutions (Innovative Mining) on 29 October 2012.

[2] On 19 November 2012, Innovative Mining filed their response to the application.

[3] Conciliation was listed, however it could not take place as Innovative Mining wanted their jurisdictional objection determined first. Directions were issued and the matter was listed for hearing.

[4] On 11 February 2013, the Fair Work Commission (the Commission) received correspondence advising that Innovative Mining was in voluntary liquidation.

[5] On 19 February 2013, Access Law Group, representatives of the liquidator advised the Commission that the “application is unable to proceed after the Respondent employer was placed into liquidation. The Corporations Act [2001] operates to create a statutory stay in these circumstances”.

[6] The Commission’s search of the ASIC insolvency database revealed that on 19 December 2012, Innovative Mining resolved that the company would be wound up and placed in voluntary liquidation.

[7] s.500(2) of the Corporations Act 2001 (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.

[8] 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.”

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

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

[11] As noted earlier, Mr Wither’s application pursuant to s.394 of the Act was filed on 29 October 2013 and the passing of the resolution for winding up occurred on 19 December 2013.

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

[13] Therefore, Mr Wither’s application under s.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]

Printed by authority of the Commonwealth Government Printer

<Price code A, PR545106>