[2012] FWA 7275 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Magdalena Silalahi
v
CMI Industrial (Forge)
(U2012/10367)
COMMISSIONER JONES |
MELBOURNE, 31 AUGUST 2012 |
Unfair Dismissal Application - S.500(2) of the Corporations Act 2001
[1] On 8 June 2012, Ms Silalahi filed an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). On 20 June 2012, McGrathnicol Corporate Recovery (McGrathnicol), appointed as Receivers and Managers of CMI Industrial Pty Ltd (CMI Industrial), objected to Fair Work Australia (FWA) further dealing with this matter on the grounds of s.471B of the Corporations Act 2001 (Corporations Act). On 14 August 2012, McGrathnicol advised that, as the winding up of CMI Industrial was initiated by a resolution of the creditors, s.500(2) of the Corporations Act applies.
[2] By correspondence dated 16 August 2012, the Applicant was directed to file and serve, by 30 August 2012, any submissions she wished to make in relation to the objections filed by McGrathnicol and to advise FWA whether she objected to this matter being determined on the papers, without the necessity of a hearing.
[3] The Applicant has filed her submissions and advised FWA that she does not object to FWA determining the objection on the papers.
[4] I am satisfied that, in the circumstances, it is appropriate to determine the objection by McGrathnicol on the papers.
[5] Having regard to the material filed by McGrathnicol, I am satisfied that on 29 May 2012, the creditors of CMI Industrial resolved that CMI Industrial should be voluntarily wound up.
[6] The issue to determine is whether FWA has jurisdiction to deal with the matter in circumstances where the appointment of a liquidator, for the purpose of winding up the Respondent, has been by voluntary resolution of the Respondent’s creditors.
Consideration
[7] S.500 of the Corporations Act relevantly provides as follows:
“500 Execution and civil proceedings
(1) ...
(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] A “court” and “Court” are defined for the purposes of the Corporations Act in s.9, which provides that, unless the contrary intention appears, the meanings are given by s.58AA.
[9] In turn, s.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 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] S.500(2) of the Corporations Act is clear and unambiguous in its reference to the “Court” and hence by operation of sections 9 and 58AA of the Corporations Act excludes FWA. 1 Consequently, the effect of s.500(2), in circumstances following the passing of the resolution for voluntary winding up, is that no action or other civil proceedings may be commenced without the leave of a Court as defined (see [9] above).
[11] A question arises as to whether an application under s.394 of the Act can be characterised as a “civil proceeding” within the meaning of s.500(2) of the Corporations Act.
[12] Civil proceeding is not defined in the Act. In Re Vassal Pty Ltd 2 (Vassal), Justice King of the Supreme Court of Queensland considered whether the applicant was required to seek leave of the Court, under the Companies (Queensland) Code (the code), to commence an arbitration against Vassal Pty Ltd (Receivers and Managers Appointed). The primary question to be determined was whether arbitration is a civil proceeding within the meaning of the relevant section of the code.
[13] His Honour extracted the following from the judgement of King CJ in Alliance Petroleum Australia (NL) v Australia Gaslight Co (Alliance Petroleum Australia): 3
“Arbitration is a regular procedure recognised by statute for the resolution of legal claims, differences or disputes between parties. Rules of law are prescribed by statute for the conduct of arbitrations. Statutory powers are conferred on arbitrators. The jurisdiction of the courts is invoked in aid of the arbitration procedure. Attendance of witnesses may be compelled, witnesses may be sworn and wilfully false evidence before an arbitrator constitutes the crime of perjury. The procedure results in an award which is enforceable at law. Arbitration is clearly recognised by the statute as a method of resolving legal disputes alternative to litigation in the courts. I think that in the ordinary use of language such a procedure would be included in the description in the description ‘civil proceedings’.”
[14] Having regard to the authorities and in particular the passage from Alliance Petroleum Australia cited above, Justice Kelly in Vassal found that the phrase “civil proceeding” includes arbitration. 4
[15] It is abundantly clear that an unfair dismissal application under s.394 of the Act will, unless settled or discontinued for other reasons, result in arbitration. The description of arbitration by Chief Justice King in Alliance Petroleum Australia is apt to describe the process of arbitration conducted in proceedings under the Act.
[16] Having regard to the authorities considered and the nature of arbitration proceedings which follow from a s.394 application, I find that an application under s.394 of the Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.
[17] S.500(2) of the Corporations Act imposes a prohibition on a civil proceeding being “proceeded with” or “commenced” except by leave of the Court.
[18] Ms Silalahi’s application under s.394 of the Act was filed on 6 June 2012 after the resolution of creditors to wind up the company. Ms Silalahi was, pursuant to s.500(2) of the Corporations Act, required to obtain leave of the Court (as defined) before commencing civil proceedings; that is, making her application.
[19] There is nothing before FWA which evidences leave has been granted by the Court to commence the application made by Ms Silalahi under s.394 of the Act.
[20] Consequently, I must dismiss the application. An Order to give effect to this will be issued today.
COMMISSIONER
1 See also decision of the Full Bench in Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137 in relation to s.471B of the Corporations Act
2 8 ACLR 683
3 (1983) 48 ALR 69 at 73
4 8 ACLR 683 at 685
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