Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal- voluntary winding up - s.491 and s.500 Corporations Act - no civil proceedings - no leave of the court - application dismissed

• [1] Mr Andrea Gjinaj (Applicant) was employed by Luan & RO Pty Ltd (Respondent) from 1 August 2024 until his employment came to an end on 22 April 2025.

• [2] On 13 May 2025, the Applicant made an application for a General Protection involving dismissal under s.365 of the Fair Work Act 2009 (the Act).

• [3] The Respondent raised two jurisdictional objections, that the Applicant was not an employee but rather a franchisee and that the Applicant was not dismissed. For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that he was dismissed in accordance with the definition in s.386 of the Act.

• [4] Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether the Applicant was dismissed in contravention of the general protections provision.

• [5] Directions were issued for the filing of material, and the matter was heard in person on 27 August 2025. Both parties were self-represented.

• [6] At the beginning of the hearing, it became apparent that the Respondent had passed a motion for the voluntary winding up of the company pursuant to s.491 of the Corporations Act 2001 (Cth) on 7 July 2025.[2]

• [7] Section 500 of the Corporations Act 2001 (Cth) provides as follows:

(1) Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.

(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.

(3) The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property of the company or books in his, her or its hands to which the company is prima facie entitled.

• [8] Section 58AA of the Corporations Act provides the following definition in relation to the meaning of "court" and "Court":

(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[3], 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)[4], 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, similarly an application pursuant to s.365 would also fall within this meaning.

• [11] On 27 August 2025 my chambers wrote to the Applicant enquiring whether he intended to seek the leave of the court in accordance with s.500 of the Corporations Act, in order to continue this matter. On 1 September 2025, the Applicant advised my Chambers that he did not intend to seek the leave of the court.

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

• [13] Section 587 of the Fair Work Act 2009 provides:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

• [14] In these circumstances, I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Gjinaj's application.

[1] [2020] FCAFC 152.

[2] Document 6EJRV3176 Reference 216377096.

[3] Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137

[4] [2012] FWA 7275 at [11] - [16]

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