Barron v Technological Resources Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARRON v TECHNOLOGICAL RESOURCES PTY LTD [2012] FMCA 818

INDUSTRIAL LAW – Summary dismissal – strike out – defective allegations in pleading addressing privity and representations – arguable case for trial on both points – need for amended pleading.

Fair Work Act 2009 (Cth), ss.44, 357, 369, 371, 544, 545
Workplace Relations Act 1996 (Cth), s.900

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Fair Work Ombudsman v Maclean Bay Pty Ltd [2012] FCA 10
Hartnett v Aardvark Security Services Pty Ltd (1998) 85 IR 315
Leggett and Anor v Aardvark Security Services Pty Ltd [2000] NSWIRComm 188
Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: BRUCE BARRON

Respondent: TECHNOLOGICAL RESOURCES PTY LTD

File Number: BRG 108 of 2012

Judgment of: Burnett FM

Hearing date: 27 June 2012

Date of Last Submission: 27 June 2012

Delivered at: Brisbane

Delivered on: 19 September 2012

REPRESENTATION

Counsel for the Applicant: Mr J. Murdoch SC and Mr D. Kent

Solicitors for the Applicant: Holding Redlich Lawyers

Counsel for the Respondent: Mr J. West QC and Mr A. Duffy

Solicitors for the Respondent: Freehills

ORDERS

1. Direct that the applicant file an amended Particulars of Part G – Contraventions Alleged on or before17 October 2012.

2. Subject to any other order being sought within seven (7) days of today’s date, direct that the costs of and incidental to the application be the respondent’s costs in the cause.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 108 of 2012

BRUCE BARRON

Applicant

And

TECHNOLOGICAL RESOURCES PTY LTD

Respondent

REASONS FOR JUDGMENT

1. Technological Resources Pty Ltd (TRPL) seeks orders for summary dismissal or the permanent staying of proceedings brought against it by the applicant, Bruce Barron. Alternatively, it seeks orders that the applicant’s particulars of the application be struck out so far as they concern the applicant’s claim for relief of the alleged contravention of s.357 of the Fair Work Act 2009 (Cth) (FW Act) and for consequential orders.

2. Barron’s claim against TRPL is for damages for breach of contract of employment or compensation in respect of contraventions of s.44 FW Act and s.357 FW Act pursuant to s.545 FW Act. The thrust of TRPL’s complaint concerns the cause of action pleaded in respect of the alleged breach of s.357. Section 357 relevantly provides:

   “Misrepresenting employment as independent contracting arrangement

   (1)  A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.

   (2)  Subsection (1) does not apply if the employer proves that, when the representation was made, the employer:

   (a)  did not know; and

   (b)  was not reckless as to whether;

   the contract was a contract of employment rather than a contract for services.”

3. Relevantly, Barron alleges in his claim that:

   a)He had…