Duncan v Kelly Logistics Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Duncan v Kelly Logistics Pty Ltd [2021] FedCFamC2G 330

File number(s): MLG 1964 of 2016
Judgment of: HER HONOUR JUDGE C. E. KIRTON QC
Date of judgment: 9 December 2021
Catchwords: INDUSTRIAL LAW – Fair Work – alleged contraventions of various provisions of the Fair Work Act 2009 (Cth) by breaching the Road Transport and Distribution Award 2010 – alleged contravention of the Fair Work Regulations 2009 by failing to keep records as prescribed – consideration of whether the Respondent took adverse action against the Applicant for exercising a ‘workplace right’ – consideration of whether the Respondent beach the employment contract by repudiating the employment contract where the Applicant resigned – application for declarations against the Respondent and for the payment of compensation and pecuniary penalties dismissed.
Legislation:

Fair Work Act 2009 (Cth), ss 12, 45, 87, 340, 341, 342, 535, 545, 546

Occupational Health and Safety Act 2004 (Vic) s 25

Fair Work Regulations 2009, reg 3.33 Road Transport and Distribution Award 2010, cll 15.2, 16.4(e), 24.1, 24.2, 24.3, 24.4, 24.5, 24.9, 24.10, 26.1, 26.3

Heavy Vehicle National Law, ss 3, 5, 227, 229, 457

Heavy Vehicle (Fatigue Management) National Regulation

National Heavy Vehicle Accreditation Scheme
Cases cited:

Abu Dhabi National Tanker Co v Product Start Shipping Ltd (No 2) [1993] 1 Lloyd’s Rep 397

Australian Workers’ Union v BHP Iron-Ore Pty Ltd [2001] FCA 3; (2000) 106 FCA 482

Cory Brothers & Company Limited v The Owners of the Turkish Steamship “Mecca”[1897] AC 286

James Turner Roofing Pty Ltd WASCA 28 (2003) 132 IR 122

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115

Linkhill Pty Ltd v Director, Officer of the Fair Work Building Industry Inspectorate [2015] FCAFC 99; (2015) 240 FCR 578

Moree Plains Shire Council v Goater [2016] FCAFC 135

Poulos v Waltons Stores (Interstate) Ltd [1986] FCA 159; (186) 10 FCR 429

Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17

Re: Rubel Bronze and Metal Co Ltd [1918] 1 KB 315

Re: Annualised Wage Arrangements [2018] FWCFB 154

Re: Pastoral Award 2010 [2015] FWCFB 8810

Shevill v Builders Licencing Board (1982) 149 CLR 620

Suisse Atlantique Société d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361

The Environmental Group Ltd v Bowd [2019] FCA 951
Division: Division 2 General Federal Law
Number of paragraphs: 174
Date of last submission/s: 9 October 2020
Date of hearing: 7 & 9 October 2020
Place: Melbourne
Counsel for the Respondent: Ms Kelly
Solicitor for the Respondent: Hall & Wilcox

ORDERS

MLG 1964 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

ANTHONY PETER DUNCAN

Applicant
AND:

KELLY LOGISTICS PTY LTD (ACN 608 259 061)

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

9 DECEMBER 2021

THE COURT ORDERS THAT:

1.The Application filed on 14 September 2016 be dismissed.

Note: The…

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Details
Case
[2021] FedCFamC2G 330
Decision Date

CaseChat Overview and Summary

Anthony Peter Duncan commenced proceedings against Kelly Logistics Pty Ltd in the Federal Circuit and Family Court of Australia, seeking various declarations, compensation, and pecuniary penalties. The Applicant, a truck driver employed by the Respondent, alleged that the Respondent contravened various provisions of the Fair Work Act 2009 (Cth) and the Road Transport and Distribution Award 2010, and that the Respondent failed to keep records as prescribed by the Fair Work Regulations 2009. The Applicant also claimed that the Respondent took adverse action against him for exercising a 'workplace right', and that the Respondent breached the employment contract by repudiating it, leading to the Applicant's resignation.

The Court was required to decide whether the Respondent contravened the Fair Work Act and the Road Transport and Distribution Award, failed to keep prescribed records, took adverse action against the Applicant, and breached the employment contract by repudiating it. The Court examined the evidence presented by both parties, including the Applicant's Daily Work Sheets, the definitions of day, afternoon, and night shifts within the RTD Award, and the Rotating Roster employed by the Respondent. The Court also considered the credibility of the evidence provided by the Respondent's witnesses.

The Court found that the Applicant's shifts were a maximum of 12 hours, consisting of 7.6 ordinary hours and up to 4.4 hours of overtime, as set out in the Applicant's Daily Work Sheets. The Court held that the Rotating Roster did not constitute day or night shifts within the meaning of the RTD Award, as the AM Roster did not commence at 5:30 am or later, and the PM Roster did not finish at or before 6:30 pm. The Court concluded that the Respondent did not contravene s.45 of the FW Act by breaching the RTD Award, did not contravene s.535(1) of the FW Act, did not take adverse action against the Applicant, and did not breach the Employment Contract by repudiating it. Therefore, the Application was dismissed.

The Court dismissed the Applicant's claims and found in favour of the Respondent. The Court ordered that the Application filed on 14 September 2016 be dismissed. The form of the order is subject to the entry in the Court's records, and the Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

ORDERS

MLG 1964 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ANTHONY PETER DUNCAN

Applicant

AND:

KELLY LOGISTICS PTY LTD (ACN 608 259 061)

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

9 DECEMBER 2021

THE COURT ORDERS THAT:

1. The Application filed on 14 September 2016 be dismissed.

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).

Background

Background to the litigation

The Applicant seeks that the Court makes declarations against the Respondent. The Applicant also seeks orders against the Respondent pursuant to s.545(2)(b) the FW Act for the payment of compensation, and pursuant to ss.546(1) and (3) of the FW Act for the payment of pecuniary penalties to the Applicant. BACKGROUND On 19 May 2015 the Applicant commenced employment as a full-time truck driver with Noske Forestry Logistics Pty Ltd (ACN 159 503 545) (Noske Company) and on 21 May 2015 the Applicant and Noske Company entered into a contract of employment (Employment Contract).[1] On 7 October 2016 the Respondent purchased Noske Company’s business and there was a transfer of business from Noske Company to the Respondent, within the meaning of s.311 of the FW Act.[2] On or about 9 October 2015, following the purchase of Noske Company’s business, the Applicant’s employment was transferred to the Respondent.[1] Affidavit of Anthony Stuart Noske, sworn April 2018 and filed 19 April 2018, [43] and Annexure TN-4.[2] Respondent’s Outline of Submissions, 9.10.20, [12]. The Respondent operates a road transport business. At all relevant times the Respondent operated a depot at 43 Westlakes Drive, Portland in the State of Victoria (Depot). The Respondent had at all relevant times a single client in Portland, South West Fibre Pty Ltd (SWF), a company that processes and exports woodchips. The Respondent transports woodchips from the Myamym Mill to the Port of Portland in the State of Victoria, using B-Double configured trucks. The Respondent employed drivers for its operation and provided the vehicles they were to drive. At all relevant times the Respondent operated a standard rotating roster (Rotating Roster), which provided for:(a)Three shifts of up to 12 hours (including ordinary hours and overtime hours) each commencing at staggered times between 2:30 am and 3:15 am (AM Roster), followed by a 24 hour break; and (b)Three shifts of up to 12 hours (including ordinary hours and overtime hours) each commencing at staggered times between 2:30 pm and 3:30 pm (PM Roster), followed by a three day break. Each shift had 7.6 ordinary hours and up to 4.4 hours of overtime.[3] All drivers employed by the Respondent worked the Rotating Roster.[3] Respondent’s Outline of Submissions, 9.10.20, [8]. At all relevant times the RTD Award applied to the Applicant. It is common ground that the Applicant was classified as Grade 8 under Schedule C of the RTD Award.[4] The Applicant was a shift worker for the purposes of the RTD Award. [4] Amended Statement of Claim, filed 13.10.17, [10]; Defence, filed 10.11.17, [10]. In addition to the Applicant the following individuals and their roles are relevant to these proceedings:(a)Anthony Stuart Noske was employed by the Respondent as General Manager of Operations and Business Development;(b)Ronald John Reed was employed by the Respondent as the SWF Contract Manger; and (c)Donald Benjamin Cameron was employed by the Respondent as the Administration Manager.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Therefore I determine that the allegations in [63] of the Amended Statement of Claim do not constitute adverse action within the meaning of s.342(1) of the FW Act and the Respondent has not contravened s.340(1) of the FW Act. CONCLUSION On the basis of the above it has been concluded that the Respondent did not:(a)Contravene s.45 of the FW Act by breaching cll.24.1(b) or (c); 15 and 24; 24.9; 26.1 and 26.2(a) and 16.4(e) of the RTD Award.(b)Contravene s.535(1) of the FW Act. (c)Take adverse action against the Applicant for a prohibited reason.(d)Breach the Employment Contract by repudiating the Employment Contract. In light of these Reasons for Judgment the Application is dismissed.

Ratio Decidendi

Legal Principle Established

The Applicant made no submissions as to the weight to be afforded to Mr Cameron’s affidavit evidence. In those circumstances, the Court accepts Mr Cameron’s evidence. CONSIDERATIONA. ALLEGED CONTRAVENTIONS OF SECTION 45 OF THE FW ACT The Amended Statement of Claim alleges that the Respondent failed to pay the Applicant in accordance with the RTD Award, and thereby contravened s.45 of the FW Act.What Hours Did the Applicant Work? The Applicant pleads that he worked set 12 hour shifts.[136] The Respondent denies this allegation and pleads that the Applicant worked pursuant to the Rotating Roster.[137] The evidence from the Respondent is that the Applicant worked a maximum of 12 hours per shift, with the actual shift length varying from day to day. Each shift comprised 7.6 ordinary hours and up to 4.4 hours of overtime.[138] The Applicant’s actual hours of work are as set out in the Applicant’s Daily Work Sheets.[139] The Applicant’s Daily Work Sheets show that the Applicant’s actual shift length varied from day to day, and that many shifts were of less than 12 hours duration. When cross-examined the Applicant accepted that he did not work a 12 hour shift each and every day.[140][136] Amended Statement of Claim, [11].[137] Defence, [11].[138] Noske Affidavit, [25]; Respondent’s Outline of Submissions, 9.10.20, [8].[139] Cameron Affidavit, [19] and Annexure BC-1.[140] Transcript (7.10.20) P30:L23-28. I therefore find that the Applicant’s shifts were a maximum of 12 hours, that the shifts were comprised of 7.6 hours of ordinary hours and up to 4.4 hours of overtime and that the Applicant’s actual hours of work are as set out in the Applicant’s Daily Work Sheets.Did the Applicant Work Day Shifts or Night Shifts within the Meaning of cll.24.1(b) and (c) of the RTD Award? The Applicant pleads that he worked afternoon, day and night shifts within the meaning of cll.24.1(a) to (c) of the RTD Award.[141] The Respondent admits that the Applicant worked afternoon shifts within the meaning of cl.24.1(a) of the RTD Award.[142]. The Respondent however denies that the Applicant worked day or night shifts within the meaning of cll.24.1(b) and (c) of the RTD Award.[143] [141] Amended Statement of Claim, [12(a)-(c)].[142] Defence, [12(a)].[143] Defence, [12(b) and (c)]. Day, afternoon and night shifts were defined in the RTD Award as:24.1 DefinitionsFor the purposes of this clause:(a) afternoon shift means a shift finishing after 6.30 pm but not later than 12.30 am.(b) day shift means a shift which commences at 5.30 am or later, but finishes at or before 6.30 pm;(c)night shift means a shift which finishes after 12.30 am and at or before 8.30 am. In relation to day shifts as defined in cl.24.1(b) of the RTD Award, the AM Roster commenced at 2:30 am. Therefore the AM Roster could not be a day shift within the meaning of cl.24.1(b), because it did not commence at 5:30 am or later. The PM Roster commenced at 2:30 pm but finished after 6:30 pm. Therefore the PM Roster could not be a day shift within the meaning of cl.24.1(b), because it did not finish at or before 6:30 pm.