Fair Work Ombudsman v Pocomwell Limited - [2013] FCA 250

FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Pocomwell Limited [2013] FCA 250

Citation: Fair Work Ombudsman v Pocomwell Limited [2013] FCA 250

Parties: FAIR WORK OMBUDSMAN v POCOMWELL LIMITED, SUPPLY OILFIELD AND MARINE SERVICES INC, SURVEY SPEC PTY LTD and THOMAS CIVIELLO

File number: WAD 241 of 2011

Judge: BARKER J

Date of judgment: 25 March 2013

Catchwords: INDUSTRIAL LAW – alleged contraventions of Fair Work Act 2009 (Cth) arising from payment of Filipino nationals working on rigs in Australia’s Exclusive Economic Zone – application by first and second respondents for permanent stay of proceedings – whether Australian court a clearly inappropriate forum – whether reg 1.15E of Fair Work Regulations 2009 (Cth) consistent with Australia’s international obligations – whether reg 1.15E authorised by s 33(3) of Fair Work Act 2009 (Cth) – whether reg 1.15E invalid by reason of uncertainty

Legislation:
Acts Interpretation Act 1901 (Cth) s 15AA
Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth) s 3, s 3(a), s 12, s 14, s 33, s 33(1)(a), s 33(1)(b), s 33(3) s 293, s 539
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Seas and Submerged Lands Act 1973 (Cth) s 10B
Workplace Relations Act 1996 (Cth)

Fair Work Regulations 2009 (Cth) reg 1.15E, reg 1.15E(1), reg 1.15E(5)

Cases cited: Barcelo v Electrolytic Zinc Company of Australasia Limited (1932) 48 CLR 391
King Gee Clothing Pty Ltd v Commonwealth (1945) 71 CLR 184
Sellers v Maritime Safety Inspector [1999] 2 NZLR 44
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581

Date of hearing: 14 March 2013

Place: Perth

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 40

Counsel for the Applicant: Mr P Menzies QC and Dr C Ward

Solicitor for the Applicant: Clayton Utz

Counsel for the First and Second Respondents: Mr R Lindsay

Solicitor for the First and Second Respondents: James Chong Lawyers

Counsel for the Third and Fourth Respondents: Mr J Blackburn

Solicitor for the Third and Fourth Respondents: HLS Legal

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

WAD 241 of 2011

BETWEEN:
FAIR WORK OMBUDSMAN
Applicant

AND:
POCOMWELL LIMITED
First Respondent

SUPPLY OILFIELD AND MARINE SERVICES INC
Second Respondent

SURVEY SPEC PTY LTD
Third Respondent

THOMAS CIVIELLO
Fourth Respondent

JUDGE:

BARKER J

DATE OF ORDER:

25 MARCH 2013

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The first and second respondents’ interlocutory application filed 21 February 2013 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

WAD 241 of 2011

BETWEEN:
FAIR WORK OMBUDSMAN
Applicant

AND:
POCOMWELL LIMITED
First Respondent

SUPPLY OILFIELD AND MARINE SERVICES INC
Second Respondent

SURVEY SPEC PTY LTD
Third Respondent

THOMAS CIVIELLO
Fourth Respondent

JUDGE:

BARKER J

DATE:

25 MARCH 2013

PLACE:

PERTH

REASONS FOR JUDGMENT
OVERVIEW

This proceeding is set down…

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: [2013] FCA 250
Decision Date: 25 March 2013

CaseChat Overview and Summary

In the case of Fair Work Ombudsman v Pocomwell Limited, the Fair Work Ombudsman sought to hold Pocomwell Limited and two related companies accountable for alleged contraventions of the Fair Work Act 2009. The dispute centred on the payment of Filipino nationals working on rigs in Australia’s Exclusive Economic Zone. The first and second respondents applied for a permanent stay of proceedings, arguing that the Australian court was not the appropriate forum and questioning the validity of regulation 1.15E of the Fair Work Regulations 2009. They argued the regulation was inconsistent with Australia’s international obligations, not authorised by section 33(3) of the Fair Work Act, and invalid due to uncertainty.

The court was tasked with determining whether the Australian court was the appropriate forum for these proceedings, and whether regulation 1.15E was consistent with Australia’s international obligations, authorised by the Act, and valid. The court found that these issues were complex and would need to be resolved at trial if the primary case of the applicant failed. The court held that the application for a stay of proceedings was premature and dismissed the interlocutory application of the first and second respondents.

The court’s decision focused on the procedural aspect of the case, ruling that the application for a permanent stay was not appropriate at this stage. The court emphasised that the substantive issues raised by the respondents would be addressed at the trial. The interlocutory application of the first and second respondents was dismissed, and no stay of proceedings was granted. The court’s orders were straightforward, reflecting the procedural nature of the decision.

Orders

Orders of the court

1. The first and second respondents’ interlocutory application filed 21 February 2013 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Suffice it to say that the issues raised by the third and fourth respondents in relation to the validity of reg 1.15E will need finally to be determined at trial in the event the applicant’s primary case, that s 33(1)(b) applies, fails. CONCLUSION AND ORDER For these reasons, relatively shortly expressed, the interlocutory application of the first and second respondents for a stay of the proceeding is refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Fair Work Ombudsman v Pocomwell Limited [2013] FCA 250
Parties:		FAIR WORK OMBUDSMAN v POCOMWELL LIMITED, SUPPLY OILFIELD AND MARINE SERVICES INC, SURVEY SPEC PTY LTD and THOMAS CIVIELLO
File number:		WAD 241 of 2011
Judge:		BARKER J
Date of judgment:		25 March 2013
Catchwords:		INDUSTRIAL LAW – alleged contraventions of Fair Work Act 2009 (Cth) arising from payment of Filipino nationals working on rigs in Australia’s Exclusive Economic Zone – application by first and second respondents for permanent stay of proceedings – whether Australian court a clearly inappropriate forum – whether reg 1.15E of Fair Work Regulations 2009 (Cth) consistent with Australia’s international obligations – whether reg 1.15E authorised by s 33(3) of Fair Work Act 2009 (Cth) – whether reg 1.15E invalid by reason of uncertainty
Legislation:		Acts Interpretation Act 1901 (Cth) s 15AA Corporations Act 2001 (Cth) Fair Work Act 2009 (Cth) s 3, s 3(a), s 12, s 14, s 33, s 33(1)(a), s 33(1)(b), s 33(3) s 293, s 539 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Seas and Submerged Lands Act 1973 (Cth) s 10B Workplace Relations Act 1996 (Cth) Fair Work Regulations 2009 (Cth) reg 1.15E, reg 1.15E(1), reg 1.15E(5)
Cases cited:		Barcelo v Electrolytic Zinc Company of Australasia Limited (1932) 48 CLR 391 King Gee Clothing Pty Ltd v Commonwealth (1945) 71 CLR 184 Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581
Date of hearing:	14 March 2013
Place:	Perth
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	40
Counsel for the Applicant:	Mr P Menzies QC and Dr C Ward
Solicitor for the Applicant:	Clayton Utz
Counsel for the First and Second Respondents:	Mr R Lindsay
Solicitor for the First and Second Respondents:	James Chong Lawyers
Counsel for the Third and Fourth Respondents:	Mr J Blackburn
Solicitor for the Third and Fourth Respondents:	HLS Legal

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 241 of 2011

JUDGE:	BARKER J
DATE OF ORDER:	25 MARCH 2013
WHERE MADE:	PERTH

JUDGE:	BARKER J
DATE:	25 MARCH 2013
PLACE:	PERTH