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Bognar v Skilled Offshore Pty Ltd & Anor

Bognar v Skilled Offshore Pty Ltd & Anor

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Case Copied 30 November 2016 68 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BOGNAR v SKILLED OFFSHORE PTY LTD & ANOR

[2016] FCCA 2962

Catchwords:
INDUSTRIAL LAW – Whether jurisdiction with respect to alleged accessorial liability where person not named on certificate issued by Fair Work Commission – whether claim has reasonable prospects of success in relation to person not named on certificate – whether claim an abuse of process in relation to person not named on certificate – whether person not named on certificate employer of the applicant.

COURTS AND JUDGES – Whether jurisdiction with respect to alleged accessorial liability where person not named on certificate issued by Fair Work Commission.

Legislation:

Acts Interpretation Act 1901 (Cth), ss.15AA, 15AB

Australian Human Rights Commission Act 1986 (Cth), s.46PO
Corporations Act 2001 (Cth), s.471B

Fair Work Act 2009 (Cth), Ch.3, Pts.3-1, 4-1, Divs.1 & 8, ss.3(e), 12, 336, 337, 340, 342, 346, 365, 368, 369, 370, 371, 539, 540, 541, 543, 544, 550, 570, 589, 590, 592

Fair Work Amendment Act 2013 (Cth)
Fair Work Bill 2008 (Cth)
Fair Work Commission Rules 2013 (Cth), r.45
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001 (Cth), rr.11.04, 13.10, 21.02, 45.06
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Court Rules 2011 (Cth), r.26.01
Racial Discrimination Act 1975 (Cth)

Cases cited:
Allan v Condamine Catchment Natural Resource Management Corporation Ltd & Ors [2015] FCCA 2632; (2015) 302 FLR 121
Allen & Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174; (2014) 240 IR 254
Attorney-General of the Commonwealth of Australia v The Queen & Ors (1957) 95 CLR 529; [1957] ALR 489; [1957] AC 288; [1957] 2 WLR 607; [1957] 2 All ER 45; (1957) 101 SJ 300; (1957) 30 ALJ 638
Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623
Autterson v ABC Dental Alliance Pty Ltd T/A ABC Dental [2013] FWC 9330
Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; (2012) 218 IR 67; (2012) 257 FLR 237
Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722
CEPU (Western Australian Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing And Allied Services Unionv Active Tree Services Pty Ltd [2011] FMCA 535; (2011) 211 IR 250
Dain v Mark Group Australia Pty Limited [2012] FMCA 518; (2012) 224 IR 94
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207; (2013) 231 IR 198; (2013) 275 FLR 273; (2013) 65 AILR 101-892
George v Fletcher (Trustee) [2010] FCAFC 53
Grigor-Scott vJones [2008] FCAFC 14; (2008) 168 FCR 450

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: [2016] FCCA 2962
Decision Date: 30 November 2016

CaseChat Overview and Summary

The applicant, Mr Bognar, brought proceedings against Skilled Offshore Pty Ltd and a second respondent, alleging accessorial liability for contraventions of the Fair Work Act 2009 (Cth). The dispute concerned whether the second respondent could be held liable for alleged contraventions when it was not named on a certificate issued by the Fair Work Commission. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were: (1) whether the court had jurisdiction to entertain a claim of accessorial liability against a party not named on a Fair Work Commission certificate; (2) whether such a claim had reasonable prospects of success; and (3) whether the claim constituted an abuse of process in relation to that party. A further issue was whether the second respondent was, in fact, the employer of the applicant.

Judge Lucev determined that the court did possess jurisdiction to consider claims of accessorial liability even where the alleged accessory was not named on the Fair Work Commission certificate. His Honour reasoned that the certificate's purpose was to permit the commencement of proceedings, and it did not limit the scope of potential defendants to those explicitly listed. The court found that the applicant's claim against the second respondent had reasonable prospects of success, and therefore, it was not an abuse of process. The court also found that the second respondent was not the employer of the applicant.

The court ordered that the proceedings against the second respondent be dismissed, but that the proceedings against Skilled Offshore Pty Ltd continue.

Orders