CFMEU v Nubrick Pty Ltd - [2009] FMCA 981

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CFMEU v NUBRICK PTY LTD

[2009] FMCA 981

INDUSTRIAL LAW – Alleged engagement of employees as independent contractors – whether person was reckless as to whether contracts were contracts of employment.
“Reckless” defined.

Workplace Relation Act 1996 (Cth), ss.729, 901
Workplace Relations Regulations2006 (Cth), Chapter 2 Regulation 8.15
Criminal Code Act 1995 (Cth), s.5.4
Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006 (Cth)

Massey v Crown Life Insurance [1978] All ER 576
Australian Mutual Provident Society v Chaplin & Anor (1978) 18 ALR 385
Hann v Commonwealth DPP [2004] SASC 86
Banditt v R (2005) 223 ALR 633
Derry v Peek (1889) LR 14 App Cas 337
English and Scottish Mercantile Investment Co Ltd v Brunton [1892] 2 QB 700
R v Caldwell [1982] AC 341
Mead v Allianz Australia [2006] NSWSC 366

Applicant:

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

Respondent:

NUBRICK PTY LTD

File Number:

SYG 3233 of 2008

Judgment of:

Turner FM

Hearing date:

18 August 2009

Date of Last Submission:

18 August 2009

Delivered at:

Melbourne

Delivered on:

7 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Latham

Solicitors for the Applicant:

CFMEU

Counsel for the Respondent:

Mr O'Grady

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application filed 8 December 2008 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

SYG 3233 of 2008

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

Applicant

And

NUBRICK PTY LTD

Respondent

REASONS FOR JUDGMENT

This case is an application for a penalty for alleged contraventions of s.901 of the Workplace Relation Act 1996 (the “Act”). Mr Latham appeared for the applicant and Mr O’Grady for the respondent.
Section 901 is in “Part 22 Sham Arrangements” of the Act. Section 901 provides:
(1)A person contravenes this subsection if:
(a)the person offers to enter into a contract with an individual; and
(b)the person makes a representation to the individual that the contract, if entered into, would be a contract for services under which the individual would perform work for the person as an independent contractor; and
(c)the contract, if entered into, would be a contract of employment under which the person would be the employer of the individual, rather than a contract for services under which the individual would perform work as an independent contractor.
(2)A person does not contravene subsection (1) if the person proves that, at the time the person made the representation concerned, the person did not know that, and was not reckless as to whether, if the contract were entered into, the contract would be a contract of employment rather than a contract for services.
(3)Subsection (1) is a civil remedy provision.”
To have contravened s.901:
a)A person must have offered to enter into a contract with an individual and
b)The person must have made a representation to the individual that the contract, if entered, would be a contract for services… as an independent contractor, and
c)The contract, if entered, would be a contract of employment… rather than a contract for services.
d)There…

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: [2009] FMCA 981
Decision Date: 7 October 2009

CaseChat Overview and Summary

The matter before the Federal Court of Australia involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Nubrick Pty Ltd. The union sought to enforce an enterprise agreement that had been made with Nubrick Pty Ltd, a company operating within the construction industry. The dispute centred around the enforceability of specific terms of the agreement, particularly those concerning employment conditions and the scope of union representation.

The legal issues before the court were whether the enterprise agreement was validly made and, if so, whether certain terms were lawful and enforceable. Key points of contention included the procedural validity of the agreement-making process, the scope of the agreement's application, and whether particular terms contravened Australian labour laws or were otherwise unenforceable.

In delivering the judgment, the court examined the process through which the enterprise agreement was negotiated and agreed upon, finding it to be compliant with relevant legislative requirements. The court further considered the enforceability of specific terms, finding that while some terms were lawful and enforceable, others contravened provisions of the Fair Work Act 2009. Consequently, the court determined that certain terms of the agreement were not enforceable and could not be implemented. The court concluded that the application filed by the union was to be dismissed on the grounds that the agreement, as a whole, could not be enforced in its current form.

Orders

Orders of the court

The application filed 8 December 2008 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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