Coote v Mainline Access Pty Ltd and Anor (No.2) - [2018] FCCA 2892

FEDERAL CIRCUIT COURT OF AUSTRALIA

COOTE v MAINLINE ACCESS PTY LTD & ANOR (No.2)

[2018] FCCA 2892

Catchwords:
INDUSTRIAL LAW – Application for the recovery of wages and other entitlements based on contravention of award and therefore s.45 of the Fair Work Act 2009 (Cth) (FW Act) – whether amounts payable under award are to be calculated by reference to rate agreed between the employer and employee that is higher than the rates provided for under award – whether because the employer and employee mistakenly intended that the employee would be engaged as a contractor but instead created or maintained an employer/employee relationship the agreed rate is not recoverable - whether if amounts payable under the award are not to be calculated by reference to the higher agreed rates whether employee can concurrently maintain an action in contract to recover amounts calculated by reference to the agreed rate – appropriation of payments to entitlements under awards discussed – if after appropriation of payments there remain amounts payable under the award and the employer, therefore, contravened the award and, therefore, s.45 of the FW Act, whether the sole director and shareholder was involved in those contraventions.

INDUSTRIAL LAW – Claims for contraventions of various other provisions of the Work Act 2009 (Cth) – whether employer contravened provisions – whether sole director and shareholder of employer was involved in contraventions.

Legislation:

Building and Construction General On-Site Award 2010
Competition and Consumer Act 2010 (Cth)
Fair Work Act 2009 (Cth) ss.44, 45, 87, 90, 323, 324, 535, 536, 545, 550
Fair Work Regulations 2009 (Cth) regs. 3.33(1), 3.34
Manufacturing and Associated Industries Award 2010, cls.4.1, 4.9, 35.2, 41.5
Superannuation Guarantee (Administration) Act 1992 (Cth) ss.16, 19, 22, 23, 27, 46
Superannuation Guarantee Charge Act 1992 (Cth) s.6

Cases cited:

ACE Insurance Ltd v Trifunovski (No.2) (2012) 215 IR 206
Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721
Dowling v Kirk & 16 Ors [2007] FMCA 2106
Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034
Hawcroft General Trading Co Pty Ltd v Hawcroft [2017] NSWCA 91
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR [97326]
James Turner Roofing Pty Ltd v Peters [2003] WASCA 28
Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspector [2015] FCAFC 99
Pacific Publications Pty Ltd v Cantlon (1983) 4 IR 415
Poletti v Ecob [1989] FCA 492
Ray v Radano [1967] AR (NSW) 471
Re Walsh; Ex Parte Deputy Commissioner of Taxation (1982) 42 ALR 727

Yorke v Lucas (1985) 158 CLR 661

Applicant:

MARK COOTE

First Respondent:

MAINLINE ACCESS PTY LTD ACN 146 159 346

Second Respondent:

SHAUN WHELAN

File Number:

SYG 1493 of 2016

Judgment of:

Judge Manousaridis

Hearing dates:

25 September 2017, 26 September 2017, 27 September 2017

Date of Last Submission:

4 October 2017

Delivered at:

Sydney

Delivered on:

12 October 2018

REPRESENTATION

Counsel for the Applicant:

Ms…

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: [2018] FCCA 2892
Decision Date: 12 October 2018

CaseChat Overview and Summary

This matter came before Judge Manousaridis in the Federal Court of Australia. The applicant, Mr Coote, sought to recover wages and other entitlements from the respondents, Mainline Access Pty Ltd and its sole director and shareholder, alleging contraventions of an industrial award and section 45 of the *Fair Work Act 2009* (Cth). The central dispute concerned whether amounts payable under the award should be calculated by reference to a higher rate agreed between Mr Coote and Mainline Access, or if the mistaken intention to engage Mr Coote as a contractor, rather than an employee, invalidated the recovery of this agreed rate. Further, the court considered whether Mr Coote could concurrently pursue a contractual claim for the agreed rate if the award entitlements were not calculated by reference to it, and the implications of appropriating payments made by the employer to award entitlements. The court also addressed whether the sole director and shareholder was involved in any contraventions of the award and section 45, as well as other provisions of the *Fair Work Act 2009* (Cth).

The court was required to determine several key legal issues. Firstly, it had to ascertain the correct method for calculating amounts payable under the award, specifically whether a higher agreed rate between employer and employee should be applied. Secondly, the court considered the legal effect of a mistaken intention to classify an employment relationship as an independent contractor arrangement on the recoverability of agreed rates. Thirdly, the court examined the possibility of an employee concurrently maintaining a contractual action to recover amounts based on an agreed rate, distinct from award entitlements. Finally, the court had to determine the extent of the sole director and shareholder's involvement in any contraventions of the *Fair Work Act 2009* (Cth) and relevant awards.

Orders