FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Byrne v LG Ferries Pty Ltd [2024] FedCFamC2G 390
File number(s): MLG 1765 of 2023 Judgment of: JUDGE O'SULLIVAN Date of judgment: 30 April 2024 Catchwords: FAIR WORK – application in a proceeding by respondent for summary dismissal – consideration of prospects of success of applicant’s claims – consideration of section 341(1)(c) Fair Work Act 2009 (Cth) – application in a proceeding dismissed – orders for future progress of matter. Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Court of Australia Act 1976 (Cth), ss.31A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr. 13.10, 13.13
Federal Circuit and Family Court of Australia Act 2021 (Cth), s. 143
Federal Circuit Court Rules 2001 (Cth), r.13.07
Cases cited: Alam v National Australia Bank Ltd [2021] FCAFC 178
Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16
Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 2) (2012) FCA 697
CumminsSouth Pacific Pty Ltd v Keenan [2020] FCAFC 204
Environmental Group LTD v Bowd [2019] FCA 951
Han v St Basil's Homes [2023] FCA 1010
Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908
Serpanos v Commonwealth of Australia [2022] FCA 1226
Shea v TRUenergy Services Pty Ltd (No. 6) (2014) 314 ALR 346
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Tattsbet Ltd v Morrow [2015] FCAFC 63
Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 17 April 2024 Place: Melbourne Counsel for the Applicant: Mr R. Millar Solicitor for the Applicant: McDonald Murholme Solicitors Counsel for the Respondent: Mr A. Denton Solicitor for the Respondent: Thomson Geer ORDERS
MLG 1765 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROBERT BYRNE
Applicant
AND: LG FERRIES PTY LTD (AS TRUSTEE FOR THE LG FERRIES TRUST T/A PORT PHILLIP FERRIES)
Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
30 APRIL 2024
THE COURT ORDERS THAT:
1.The respondent’s application in a proceeding filed 20 November 2023 be dismissed.
2.The proceedings be adjourned to a directions hearing on a date and at a time to be fixed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
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- Case
- [2024] FedCFamC2G 390
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the applicant's complaints about his employment were such that they could be considered as complaints or inquiries within the meaning of section 341(1)(c)(ii) of the FW Act. The court needed to evaluate if these complaints had any substance and were not manifestly untenable or groundless. Additionally, the court had to consider whether the respondent had taken adverse action against the applicant due to these complaints or other reasons, which would breach section 340(1) of the FW Act.
The Fair Work Commission examined the evidence related to each of the applicant’s complaints and concluded that they were not so lacking in merit or substance as to be not reasonably arguable. The Commission found that the applicant's complaints about his employment were plausible and could be considered within the scope of section 341(1)(c)(ii) of the FW Act. Consequently, the application for summary dismissal was dismissed, as the Commission was not persuaded that the applicant's claims were without merit. The matter was allowed to proceed to a full hearing to determine the merits of the applicant's claims.
The Commission ordered that the application in a proceeding be dismissed and that the matter proceed to a full hearing to allow the applicant to present his case in detail.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Port Phillip Ferries also said the allegations made in the Claim at paragraphs [30] – [34], that Port Phillip took “adverse action” because of the above complaints should be summarily dismissed (so far as it did so). Those parts of the Claim were:30.In breach of section 340(1) of the Fair Work Act 2009 (Cth), the Respondent subjected the Applicant to the Misconduct Allegation because of, or for reasons that included the First through Seventh Employment Complaint, the Period of Annual Leave and the Period of Paid Personal Leave.31.In breach of section 340(1) of the Fair Work Act 2009 (Cth), the Respondent placed the on the Stand Down because of, or for reasons that included the First through Seventh Employment Complaint, the Period of Annual Leave and the Period of Paid Personal Leave.32.In breach of section 340(1) of the Fair Work Act 2009 (Cth), the Respondent issued the Applicant the Show Cause Letter because of, or for reasons that included the First through Seventh Employment Complaint, the Period of Annual Leave and the Period of Paid Personal Leave.33.In breach of section 340(1) of the Fair Work Act 2009 (Cth), the Respondent failed to address the serious occupational health and safety risks involved with the First through to Seventh Employment Complaint because of, or for reasons that included the First through Seventh Employment Complaint, the Period of Annual Leave and the Period of Paid Personal Leave.34.In breach of section 340(1) of the Fair Work Act 2009 (Cth), the Respondent dismissed the Applicant because of, or for reasons that included the First through Seventh Employment Complaint, the Period of Annual Leave and the Period of Paid Personal Leave. (emphasis added)CONSIDERATION Having set out the relevant sections of the Claim it is also necessary to refer to the relevant legislative provisions in the FW Act because of the relief sought in the application in a proceeding.The relevant legislative provisions The legislative provisions of Pt 3-1 of the FW Act revolve around certain core protective concepts. In particular, those on which the applicant relied proscribe his former employer (Port Phillip Ferries) from taking adverse action (s.340(1)). In this case, as best his application can be understood, either by dismissing him or altering his position to his prejudice (s.342(1)), because the applicant had a workplace right, or to prevent the exercise of a workplace right (s.340(1)(a) or (b)). The applicant will have a workplace right if inter alia he is able to make a complaint or inquiry in relation to his employment (s.341(1)). Section 341(1)(c)(ii) of the FW Act provides that a person has a workplace right “if the person is able to make a complaint or inquiry: if the person is an employee – in relation to his or her employment.” Extensive consideration has been given by Courts to the words ‘complaint or inquiry’, and to the meaning of the phrase ‘is able to make a complaint or inquiry...if the person is an employee – in relation to his or her employment’ in s.341(1)(c)(ii) of the FW Act. See for example: Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 at [41], and [43]; Serpanos v Commonwealth of Australia [2022] FCA 1226 at [89]; Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 (‘Whelan’) at [28]; Alam v National Australia Bank Ltd [2021] FCAFC 178 (‘Alam’) at [94]; [97]-[98].