1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal (consent arbitration)
Joel Woolley
v
Glenjac Pty Ltd t/a Aussie Farmers Direct
(C2014/5658)
VICE PRESIDENT HATCHER SYDNEY, 4 NOVEMBER 2014
[1] On 17 June 2014 Mr Joel Woolley lodged an application pursuant to s.365 of the Fair
Work Act 2009 (FW Act) alleging that he had been dismissed by Glenjac Pty Ltd (Glenjac) in
contravention of s.352 of the FW Act. Mr Woolley also alleged that Glenjac had
misrepresented an employment relationship between it and him as being an independent
contracting arrangement contrary to s.357 of the Act.
[2] On 16 July 2014 the Commission conducted a conference to deal with the dispute in
accordance with s.368(1) of the FW Act. On the same day, the Commission certified,
pursuant to s.368(3)(a) of the FW Act, that it was satisfied that all reasonable attempts to
resolve the dispute have been, or are likely to be, unsuccessful.
[3] On 28 July 2014 Mr Woolley and Glenjac notified the Commission pursuant to
s.369(1)(b) that they agreed to the Commission arbitrating the dispute. Each party was legally
represented at this time, Mr Woolley by Turner Freeman Lawyers and Glenjac by Dignan &
Hanrahan Solicitors.
[4] The Commission subsequently made directions for the conduct of the arbitration.
Initially the directions required Mr Woolley to file and serve his submissions and evidence on
or before 8 September 2014 and Glenjac to file and serve its submissions and evidence on or
before 6 October 2014, with the hearing to occur on 13 October 2014. Mr Woolley filed his
submissions and evidence within the time required by the directions, but due to an oversight
on the part of his solicitors this material was not served on Glenjac until about 17 September
2014.
[5] On 8 October 2014 Glenjac (through its solicitors) made an application by email to my
Associate for an adjournment of the hearing date in the following terms:
“Dear Mr Hill,
We act for the Respondent in this matter and note that the matter is listed for Hearing
on Monday 13 October 2014.
[2014] FWC 7833
STATEMENT
E AUSTRALIA FairWork Commission
[2014] FWC 7833
2
An adjournment of the hearing date is sought to the 3 November 2014 for the
following reasons:
1. The Applicants material was served on us on 19 November 2014 some 11 days
after the date directed;
2. Accordingly, our client requires some additional time to compile their material
in reply;
3. The writer is unavailable due to medical leave from 21 -27 October 2014;
In the event the 3 November is not suitable it is proposed that either 30 October or
6,7,11 or 12 November 2014 would also be preferred.
If there is any further information required please do not hesitate to contact the
writer.”
[6] Although it was not noticed at the time, I note now that the subject heading of the
email was “Smith Purchase of Franchise from 2120269”. Mr Woolley’s application stated
that Glenjac owned an Aussie Farmers Direct franchise, and identified Mr Glen Smith as
Glenjac’s contact person. Glenjac’s response to the application admitted that Glenjac operated
a franchise of Aussie Farmers Direct, and was signed by Mr Glen Smith. Whether this has any
significance is not clear.
[7] Mr Woolley opposed this application. However I determined to grant the application
in order that Glenjac received the benefit of the four week period allowed by the original
directions to prepare its evidence and submissions. The hearing date of 13 October 2014 was
vacated, and a new direction was issued requiring Glenjac to file and serve its material by 17
October 2014. After confirming the availability of the parties, a new hearing date of 11
November 2014 was set.
[8] On 16 October 2014 the solicitors for Glenjac sent the following email to my
chambers and to the solicitors for Mr Woolley:
“Dear Sir/Madam,
We refer to the above matter and advise we no longer hold instructions in relation to
this matter as the company has been appointed a liquidator [sic].
We enclose for your information Form 505 received from Amos Insolvency in relation
to the same.
We conform [sic] the Notice of Listing has been forwarded to Mr Smith for his
attention.”
[9] The attached “Form 505” was an Australian Securities & Investments Commission
(ASIC) standard form entitled “External Administration - Appointment of an external
administrator”. It notified that Peter Andrew Amos of Unit 25, 185 Airds Road Leumeah
NSW had been appointed as “Liquidator of creditors’ voluntary liquidation”. The date of
appointment was stated to be 1 October 2014, and the form further stated that it was
submitted by Mr Amos on 2 October 2014. In response to an inquiry from my chambers, it
appears that the solicitors for the respondent received a copy of this on 10 October 2014.
[2014] FWC 7833
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What the state of Glenjac’s solicitors’ instructions was when it made the application it did on
8 October 2014 is of course unknown.
[10] On 20 October 2014 my Associate sent the following email to the solicitors for Mr
Woolley, attaching the correspondence from Glenjac:
“Dear Ms Walsh,
We have received the attached notice of the appointment of a liquidator in respect of
the respondent company. It appears that the respondent has determined to voluntarily
wind itself up under s.491 of the Corporations Act 2001. If so, this matter cannot,
under s.500(2), proceed without the leave of a relevant court.
In light of the above can you please provide urgent advice as to what further steps, if
any, may be taken in relation to this matter.
Regards etc.”
[11] A copy of this email was sent to Mr Amos.
[12] In response, Mr Woolley’s solicitors filed on the same day a notice that they ceased to
act for Mr Woolley. Accordingly my Associate later that day sent the following email directly
to Mr Woolley together with a copy of the email that had been sent to his solicitors:
“Dear Mr Woolley,
Please refer to the below correspondence we sent to your solicitor earlier today. In
response we received a Form 54 advising that she no longer acts on your behalf.
Could you please provide a response to the email below, having regard to the attached
correspondence we also received from the liquidator addressed to your previous
solicitors.
Regards etc.”
[13] In response to this email, Mr Woolley made telephone contact with my Associate. Not
surprisingly he was unclear as to his position and was unable to give an informed response.
[14] The following email was also sent to my chambers on 20 October 2014 by Mr Amos:
“Dear all
We have been notified that the plaintiff's claim is contingent against the company
We have spoken to the claimant today and set out our proposal to deal with the issue.
That proposal involves that we would assist the claimant in putting forward his claim
to the Department of Employment and Workplace Relations to claim under the FEG
scheme
[2014] FWC 7833
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The Dept will then make a determination in relation to eligibility
I hope this meets the approval of the parties.”
[15] Section 500(2) of the Corporations Act 2001 provides:
(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.
[16] It has been held that s.500(2) applies to a creditors’ voluntary winding up, but not to a
members’ voluntary winding up.1 The Form 505 indicates that Glenjac is subject to a
creditors’ voluntary winding up. This is confirmed by a search of ASIC’s online register.
Section 500(2) therefore applies.
[17] I do not consider that there can be any serious question that the consent arbitration
proceeding before the Commission is a civil proceeding for the purposes of s.500(2) of the
Corporations Act. The matter therefore cannot proceed absent Mr Woolley obtaining the
leave of a relevant court. In those circumstances the hearing set down for 11 November 2014
is vacated.
[18] It is to be noted however that s.500(2) relevantly applies only to an action or civil
proceeding against Glenjac. It would have no application to any other person who Mr
Woolley might allege was involved in the contravention of the FW Act he alleges against
Glenjac (see s.550 of the FW Act).
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code A, PR557384
1 Catto and Others v Hampton Australia (In Liq) and Another (1998) 29 ACSR 225; Awada v Linknarf Ltd (In Liq) (2002) 55
NSWLR 745.
OF THE FAIR WORK MISSION THE
