Askaro v Leading Synthetics Pty Ltd - [2014] FCCA 2081

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASKARO v LEADING SYNTHETICS PTY LTD & ANOR [2014] FCCA 2081

Catchwords:
INDUSTRIAL LAW – Alleged contravention of general protections under Fair Work Act by first respondent – alleged breach of award by second respondent – allegation of adverse action against employee of contractor in contravention of s.340 of Fair Work Act 2009 – whether action by principal against employee of independent contractor is adverse action within meaning of s.342(1), item 3 of the Act – application dismissed – allegation that employer breached s.45 of the Act by failing to pay employee in accordance with the Award – held employer contravened s.45 of the Act – allegation independent contractor contravened s.550 of the Act – application dismissed.

Legislation:

Workplace Relations Act 1996, ss.182, 204, 208, 717, 720, 728, 11(1)

Fair Work Act 2009, ss.45, 340, 550
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Lek v Minister for Immigration (1993) 43 FCR 100
Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8
Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160
Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No.2) [2013] FCA 446
City of Wanneroo v ASU (2006) 153 IR 426
Minister v Dey [191] AR 19
Logan v Otis Elevator Company Pty Ltd [2001] IRCA 1
Yorke & Anor v Lucas[1985] HCA 65
Australian Building & Construction Commissioner v Abbott (No.4) (2011) FCA 950
Briginshaw v Briginshaw[1938] HCA 34

Applicant: WALEED ASKARO

First Respondent: LEADING SYNTHETICS PTY LTD

Second Respondent: ALTON-WEST FOOTSCRAY PTY LTD

File Number: MLG 1094 of 2010

Judgment of: Judge Jones

Hearing date: 11 April 2014

Date of Last Submission: 13 June 2014

Delivered at: Melbourne

Delivered on: 11 September 2014
REPRESENTATION

Counsel for the Applicant: Ms Norton

Solicitors for the Applicant: Hughes Watson Marks Kennedy

Counsel for the First Respondent: Mr Mc Kenney

Solicitors for the First Respondent: B2B Lawyers

Counsel for the Second Respondent: Mr McNab

Solicitors for the Second Respondent: Harwood Andrews
ORDERS
THE COURT DECLARES:
(1)
That the Second Respondent contravened s.182(1) of the Workplace Relations Act 1996 (Cth) by failing to pay the complainant,

Mr Waleed Askarao, the basic period rate of pay payable under the Australian Pay and Conditions Standard in accordance with clause 21.1.3, Manufacturing/Production Employee Level 3 of the Rubber, Plastic And Cablemaking Industry – General Award 1998.
(2)
That the Second Respondent contravened s.45 of the Fair Work Act 2009 (Cth) by failing to pay the complainant,

Mr Waleed Askarao, the applicable rate of pay in accordance with Schedule A of the Manufacturing and Associated Industries and Occupations Award 2010.

THE COURT ORDERS:
(3)The application by the complainant, Mr Waleed Askarao, that the first Respondent contravened s.340 of the Fair Work Act 2009 (Cth) be dismissed.
(4)The application by the complainant, Mr Waleed Askarao, that the first Respondent contravened s.728 of the Workplace Relations Act 1996 (Cth) and s.550…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 2081
Decision Date: 11 September 2014

CaseChat Overview and Summary

In *Askaro v Leading Synthetics Pty Ltd*, the Supreme Court of Victoria considered a dispute between the applicant, Askaro, and the respondent, Leading Synthetics Pty Ltd. The core of the disagreement concerned the alleged breach of a settlement agreement that had been reached between the parties in prior proceedings. Askaro sought to enforce the terms of this settlement agreement.

The primary legal issue before the Court was whether Leading Synthetics Pty Ltd had breached the settlement agreement by failing to make a payment as stipulated. This required the Court to interpret the terms of the settlement agreement and determine if the respondent's actions constituted a repudiation or a breach of its obligations.

Judge Jones found that the respondent had indeed breached the settlement agreement. The Court reasoned that the respondent's failure to make the agreed-upon payment was a fundamental breach, which entitled the applicant to treat the agreement as repudiated. The Court applied the principles of contract law, focusing on the interpretation of contractual obligations and the consequences of their breach. The Court ordered that the settlement agreement be terminated and that the original proceedings be reinstated.

Orders