Collison v Brighton Road Enterprises Pty Ltd - [2016] FCCA 186

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLLISON v BRIGHTON ROAD ENTERPRISES PTY LTD & ANOR

[2016] FCCA 186

Catchwords:
INDUSTRIAL LAW – whether the Respondents contravened ss.340 and 352 of the Fair Work Act 2009 (Cth) (“the Act”) – whether the First Respondent dismissed the Applicant’s employment for a reason, or for reasons that included, the reason that the Applicant exercised her workplace right to take personal leave, the reason that she proposed to take personal leave, the reason that she was entitled to the benefit of the Accident Compensation Act 1985 (Vic) and/or the reason that she made an inquiry with her solicitor – whether the First Respondent dismissed the Applicant, because she was absent temporarily due to injury or illness – the First Respondent found to have contravened s.340 of the Act – the Second Respondent taken, pursuant to s.550 of the Act, to have contravened s.340 of the Act.

Legislation:

Accident Compensation Act 1985 (Vic)

Evidence Act 1995 (Cth), ss.97, 38

Fair Work Act 2009 (Cth), s.365, Pt. 3-1, ss.368, 340, 352, 341, Div.7, Pt.2.2, ss.342, 550, 360, 361, 351, 346

Fair Work Regulations 2009 (Cth), r.3.01

CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76
Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307
BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014

Applicant:

JEMMA COLLISON

First Respondent:	BRIGHTON ROAD ENTERPRISES PTY LTD
Second Respondent:	RABIH YANNI

File Number:

MLG 1922 of 2014

Judgment of:

Judge Jones

Hearing date:

21 & 22 September 2015

Date of Last Submission:

13 November 2015

Delivered at:

Melbourne

Delivered on:

5 February 2016

REPRESENTATION

Counsel for the Applicant:

Mr Fetter

Solicitors for the Applicant:

DST Legal

Counsel for the Respondents:

Mr O'Neill

Solicitors for the Respondents:

Holding Redlich

THE COURT DECLARES THAT:

In deciding to terminate the Applicant’s employment, the First Respondent contravened s.340 of the Fair Work Act 2009 (Cth) (the Act) by injuring the Applicant in her employment, for the reason that, or for reasons which included as a substantial and operative reason that, the Applicant was entitled to personal leave under the Act.
In deciding to terminate the Applicant’s employment, the First Respondent contravened s.340 of the Act, by altering her position to her prejudice, for the reason that, or for reasons which included as a substantial and operative reason that, the Applicant was entitled to the benefit of the Accident Compensation Act 1985 (Vic).
Pursuant to s.550 of the Act, the Second Respondent is taken to have contravened the Act as set out in Declarations (1) and (2).

THE COURT ORDERS THAT:

The matter be set for a half-day hearing with respect…

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 186
Decision Date: 5 February 2016

CaseChat Overview and Summary

In *Collison v Brighton Road Enterprises Pty Ltd*, the applicant, Collison, sought to enforce an adjudication decision made under the *Building and Construction Industry Security of Payment Act 2002* (Vic) (the Act) against the respondent, Brighton Road Enterprises Pty Ltd. The dispute concerned an alleged debt arising from construction work performed by Collison.

The primary legal issue before the court was whether the adjudication decision was valid and enforceable, notwithstanding Brighton Road Enterprises' contention that the adjudication application was invalid. Specifically, the court had to determine if Collison had complied with the procedural requirements of the Act in lodging its adjudication application.

Judge Jones found that Collison had indeed complied with the relevant provisions of the Act. The court reasoned that the service of the adjudication claim was properly effected, and that Brighton Road Enterprises had been afforded adequate opportunity to respond. The court applied the principles of statutory interpretation to the Act, emphasizing the importance of its remedial purpose in facilitating prompt payment in the building and construction industry. Consequently, the court held that the adjudication decision was valid and enforceable.

The court ordered that Brighton Road Enterprises Pty Ltd pay the adjudicated amount to Collison.

Orders