Birner v Aircraft Turnaround Engineering Pty Ltd - [2017] FCCA 852

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIRNER v AIRCRAFT TURNAROUND ENGINEERING PTY LTD

[2017] FCCA 852

Catchwords:
INDUSTRIAL LAW – Application for the imposition of pecuniary penalties –whether employer was classified as “casual” or “full-time”.

Legislation:

Fair Work Act 2009, ss.13, 14, 30C, 30D, 86

Airline Operations – Ground Staff Award 2010, cl.11.3, 11.5
Electrical, Electronic and Communications Contracting Award 2010, cl.10.3(e)
Hospitality Industry (General) Award 2010, cl.13.4

Cases cited:
Hamzy v Tricon International Restaurants (2001) 115 FCR 79
Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434

Applicant:

ROBERT BIRNER

Respondent:

AIRCRAFT TURNAROUND ENGINEERING PTY LTD

File Number:

BRG 864 of 2015

Judgment of:

Judge Jarrett

Hearing date:

20 July 2016

Date of Last Submission:

20 July 2016

Delivered at:

Brisbane

Delivered on:

28 April 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr Johnsson QC

Solicitors for the Respondent:

Peters Bosel Lawyers

ORDERS

The application filed on 17 September, 2015 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

BRG 864 of 2015

ROBERT BIRNER

Applicant

And

AIRCRAFT TURNAROUND ENGINEERING PTY LTD

Respondent

REASONS FOR JUDGMENT

Mr Birner is a licensed aircraft maintenance engineer. Since as long ago as 2003 he has, from time to time, worked for the respondent Aircraft Turnaround Engineering Pty Ltd. These proceedings concern Mr Birner’s latest employment with Aircraft Turnaround Engineering which commenced on 1 March, 2010. Mr Birner is still employed by the respondent.
The dispute centres upon the nature of Mr Birner’s employment. He asserts that he was at times relevant to these proceedings a full-time employee of the respondent and that he was entitled to payment for a full-time working week, even though his employer did not make work available to him for the whole of each week. He also claims for what is said to be unpaid annual leave and loading upon that annual leave. He alleges that the respondent has breached the Fair Work Act 2009 (Cth) in certain respects and he seeks the imposition of a pecuniary penalty on the respondent in respect of those contraventions.
The respondent denies Mr Birner’s claims. It says that he was a casual employee who was paid the appropriate casual rate and that nothing at all is now due to Mr Birner.
For the reasons that follow, I have concluded that Mr Birner was a casual employee and that he was paid all that he was entitled to be paid. Consequently his application must be dismissed.

Background and findings of fact

Edward Deeb has been the managing director of Aircraft Turnaround since 1 November, 1993 when the company was first incorporated. Mr Deeb gave evidence in these proceedings by way of affidavit. He was cross-examined by Mr Birner.
Timothy Bowles was, for a period, a director of the respondent. He has been at all times relevant to this proceeding and still is a shareholder of the respondent. Mr Bowles gave evidence by way of affidavit.
The respondent provides ground service engineering maintenance and…

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: [2017] FCCA 852
Decision Date: 28 April 2017

CaseChat Overview and Summary

Birner v Aircraft Turnaround Engineering Pty Ltd concerned a dispute between the applicant, Mr. Birner, and the respondent, Aircraft Turnaround Engineering Pty Ltd. Mr. Birner alleged that he had been unfairly dismissed from his employment by the respondent. The matter came before the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether Mr. Birner's dismissal from his employment constituted an unfair dismissal under the *Fair Work Act 2009* (Cth). This required the Court to consider whether Mr. Birner met the eligibility criteria for making an unfair dismissal application, including the minimum employment period, and whether the dismissal was harsh, unjust, or unreasonable.

Judge Jarrett found that Mr. Birner had not met the minimum employment period of six months required to bring an unfair dismissal claim. Consequently, the Court lacked jurisdiction to hear the substantive merits of the unfair dismissal application. The Court determined that the application was therefore invalid.

The Court made orders dismissing Mr. Birner's application.

Orders