[2026] FWC 23 [Note: a correction has been issued to this document]

Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - liquidation - application stayed

• [1] Mr Muhammad Awan (Applicant) was engaged by Zone Manufacturing Pty Ltd (Respondent) from 17 June 2024 until he was dismissed 14 October 2025.

• [2] On 3 November 2025, the Applicant made an application for a remedy for general protections involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Respondent subsequently lodged a jurisdictional objection that the Applicant was not an employee but rather was an independent contractor.

• [3] 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.

• [4] On 24 December 2025, Jenna Lloyd, the Chief Operating Officer of the Respondent wrote to the Commission, copying in the Applicant (and a representative from the firm Cor Cordis), advising that the Respondent had entered into voluntary administration on 1 December 2025 and that the firm Cor Cordis (Administrator) had been appointed as the Voluntary Administrator. The Respondent asked that all future correspondence be directed to the appointed Administrator.

• [5] A copy of the Form 505, "External Administration or Controllership - Appointment of an administrator or controller" (Instrument), was sought and subsequently received by my Chambers confirming the appointment of the Administrator and specifically the liquidators Ms Kate Conneely, Mr Rahul Goyal and Mr Stephen Earel, jointly and severally, as the administrators of the Respondent with effect from 1 December 2025.[2]

• [6] My Chambers wrote to the Administrator on 30 December 2025 and asked the Administrator if they consented to the continuation of these proceedings pursuant to the Corporations Act 2001 (Cth) (Corporations Act) and whether the Respondent is likely to continue trading or be deregistered.
• [7] On 31 December 2025, the Administrator wrote to my Chambers advising that they neither consent to nor oppose the continuation of the proceedings. In respect of the future of the business, the Administrator advised that the Respondent business is presently for sale, that the vast majority of its more than 250 employees were made redundant on the date of appointment and that otherwise it was too early to confirm the position with respect to the future of the business.

• [8] I instructed my Chambers to write to the Applicant advising him of these things, informing the Applicant that I was considering issuing a stay order on his application, and seeking his views by 4pm on Friday, 4 January 2026.

• [9] The Applicant did not provide any response to Chambers' correspondence.

• [10] Section 500(2) of the 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."

• [11] 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, but use of the expression "the Court"), proceedings in relation to a matter under this Act may, subject to Part 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts."

• [12] 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.

• [13] 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. That finding is equally relevant for the current application before the Commission.

• [14] I am satisfied that there is no evidence before me of any intention by the Applicant or any other party, to seek the leave of the Court.

• [15] As noted earlier, the Applicant's application pursuant to s.365 of the Act was filed on 3 November 2025 and the passing of the resolution for winding up occurred on 1 December 2025.

• [16] 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.

• [17] Therefore, the Applicant's application under s.365 of the Act is stayed.

[1] [2020] FCAFC 152.

[2] Document No. 7EDT75992, dated 1 December 2025.

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

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

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