Newman v East Yarra Friendly Society Pty Limited Trading As My Chemist Pharmacy

REASONS FOR JUDGMENT 1 The applicant seeks an adjournment of the directions hearing in this matter in the circumstances described below. 2 The applicant's employment with the respondents was terminated on 17 May 2010. She alleges that her employment was terminated by reason of her pregnancy in contravention of s 772(1) of the Fair Work Australia Act 2009 (Cth) (the Act). On 18 June 2010, the applicant through her legal representatives applied to Fair Work Australia (FWA) under s 773 of the Act for FWA to deal with the dispute. This application was brought under Part 6 - 1 of the Act. A certificate was subsequently issued by FWA under s 777 to the effect that all attempts to resolve the dispute had been, or were likely to be, unsuccessful. In reliance on that certificate, the applicant filed an unlawful termination application against the respondents on 7 October 2010. 3 It is now common ground that the applicant, being a national system employee as defined in s 30C(1)(a) of the Act, was entitled to apply to FWA under s 365, obtain a certificate under s 369 and make a general protections court application under s 371. 4 In those circumstances, by reason of s 723, she is precluded from making an unlawful termination application under Part 6-1 of the Act. 5 It is a prerequisite to the exercise of the Court's jurisdiction that, for a general protections application under s 371, the applicant obtain a certificate issued by FWA pursuant s 369. 6 The applicant does not have a certificate under s369. Instead, having applied to FWA under s 773 of the Act, the applicant has a certificate under s 777. This defect caused the respondent to apply for interlocutory orders to have the application struck out as not disclosing any reasonable cause of action. 7 In response to that application, the applicant sought leave to amend her application. The Court raised the difficulty in that course. Were the applicant to amend her application in order to bring the matter within the Court's jurisdiction, she would need to allege that a certificate had been obtained from FWA under s 369 of the Act. As a matter of fact, that has not occurred. Consequently, any such amendment would not assist the applicant in placing her case on a proper jurisdictional footing. To allow that amendment would be futile. 8 In Maher v Mulgowie Fresh Pty Ltd (2010) FCA 439, the Court, in similar circumstances, allowed an application to amend. However, no discussion in that judgment was directed to the issue which is determinative of this case, namely whether any amendment would provide the jurisdictional basis for the application. 9 In those circumstances, the pragmatic course in this case would be for the applicant to return to FWA and make a fresh application under s 365 for FWA to deal with the dispute. FWA would then be required to conduct a conference under s 368(1). Against the background of this particular case, it is likely that such a conference would not resolve the dispute, and a certificate would issue under s 369. 10 One problem which the applicant faces in returning to FWA is the time limit on applications under s 365. The 60-day time limit prescribed by s 366(1)(a) has expired. However, s 366(1)(b) allows for FWA to extend the time under s 366(2). The exercise of the discretion to extend time under s 366(2) is a matter entirely for FWA. However, I regard the present application for an adjournment of the Court proceeding as justified because it would be surprising indeed if the present circumstances, so far as they have been outlined to the court, did not provide a basis for an extension of time under s 366(2). 11 The reason for the delay in this case was a misconception on the part of the applicant's legal representatives as to the proper section under which the application should be brought. That mistake is not one which should be visited upon the applicant herself. Consequently, it is hoped that the matter can be rectified by the applicant making a fresh application to FWA now under s 365, and seeking an extension of time within which that application is to be made. The conference required under s 368 could then be convened, and in all likelihood, a certificate issued under s 369. If those steps are taken, and the foreshadowed result achieved, then the applicant will be in a position to amend the application in this Court in order to raise the merits of her case, which is what she has sought to do in the unsuccessful attempt so far. 12 In those circumstances, the directions hearing will be adjourned until 10.15 am on 5 December 2011. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.