Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 3)

[2013] FCA 734

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 3) [2013] FCA 734

Citation:		Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 3) [2013] FCA 734
Parties:		FAIR WORK OMBUDSMAN v QUEST SOUTH PERTH HOLDINGS PTY LTD (ACN 109 989 531), CONTRACTING SOLUTIONS PTY LTD (ACN 099 388 575), ASHVIN LUCHMAYA and PAUL KONSTEK
File number:		WAD 185 of 2011
Judge:		MCKERRACHER J
Date of judgment:		26 July 2013
Place:		Perth
Catchwords:		INDUSTRIAL LAW – sham contracting – settling of final declarations and orders
Legislation:		Fair Work Act 2009 (Cth) ss 358, 550
Cases cited:		Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 2) [2013] FCA 582
Date of hearing:	Determined on the papers
Date of last submissions:	12 July 2013
Place:	Perth
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	4
Counsel for the Applicant:	IM Neil SC
Solicitor for the Applicant:	Clayton Utz
Counsel for the First Respondent:	The First Respondent did not appear
Counsel for the Second and Fourth Respondents:	RE Lindsay
Solicitor for the Second and Fourth Respondents:	Norton Rose Fulbright Australia
Counsel for the Third Respondent:	The Third Respondent filed submissions in person

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 185 of 2011

BETWEEN:

FAIR WORK OMBUDSMAN
Applicant

AND:

QUEST SOUTH PERTH HOLDINGS PTY LTD
(ACN 109 090 531)
First Respondent

CONTRACTING SOLUTIONS PTY LTD
(ACN 099 388 575)
Second Respondent

ASHVIN LUCHMAYA
Third Respondent

PAUL KONSTEK
Fourth Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	26 JULY 2013
WHERE MADE:	PERTH

THE COURT DECLARES THAT:

1.The first respondent contravened s 358 of the Fair Work Act 2009 (Cth) (FW Act) by threatening to dismiss Jessica Buttrum-Virco in order to engage her as an independent contractor to perform the same, or substantially the same, work under a contract for services (Quest’s s 358 contravention). 

2.The third respondent is taken to have also contravened s 358 of the FW Act, in that he was involved in Quest’s s 358 contravention within the meaning of s 550 of the FW Act.

THE COURT ORDERS THAT:

3.The declarations sought in the amended application in relation to the first and third respondents otherwise be dismissed.

4.The amended application be dismissed in relation to the second and fourth respondents in respect of all declarations sought under s 357 and s 358 of the FW Act.

5.A directions hearing be listed in order to program a hearing to determine any penalties to be imposed against the first respondent and the third respondent.

6.(a)       The second and fourth respondents file any affidavit(s) (if appropriate), with submissions in support of an application for costs, within 21 days from the making of these orders. 

(b)If any application for costs is made by the second and fourth respondents, the applicant file and serve any affidavit(s) and submissions in response, within 14 days of receipt of the second and fourth respondents’ submissions.

(c)Any application made with supporting materials for costs be determined on the papers. 

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 185 of 2011

BETWEEN:

FAIR WORK OMBUDSMAN
Applicant

AND:

QUEST SOUTH PERTH HOLDINGS PTY LTD
(ACN 109 090 531)
First Respondent

CONTRACTING SOLUTIONS PTY LTD
(ACN 099 388 575)
Second Respondent

ASHVIN LUCHMAYA
Third Respondent

PAUL KONSTEK
Fourth Respondent

JUDGE:	MCKERRACHER J
DATE:	26 JULY 2013
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. In Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 2) [2013] FCA 582 (Quest No 2) the applicant’s claim succeeded as against the first and third respondents in respect of a threat made to an employee within the meaning of s 358 of the Fair Work Act 2009 (Cth) (FW Act). 

2. The application was otherwise dismissed.  The parties have submitted various versions of draft orders dealing with the outstanding matters.  In large measure there is agreement, at least in substance. 

3. On the question of costs, the applicant submits that there should be no order as to costs as the matters set out in s 570(2) of the FW Act are not applicable. Notwithstanding this submission, the applicant appears to recognise that it is open to the second and fourth respondents to at least make an application in respect of costs. It seeks the opportunity to be heard in response which, of course, is reasonable.

4. Taking into account the various submissions made and orders proposed, the following orders and declarations will be made:

   THE COURT DECLARES THAT:

   1.The first respondent contravened s 358 of the Fair Work Act 2009 (Cth) (FW Act) by threatening to dismiss Jessica Buttrum-Virco in order to engage her as an independent contractor to perform the same, or substantially the same, work under a contract for services (Quest’s s 358 contravention). 

   2.The third respondent is taken to have also contravened s 358 of the FW Act, in that he was involved in Quest’s s 358 contravention within the meaning of s 550 of the FW Act.

   THE COURT ORDERS THAT:

   3.The declarations sought in the amended application in relation to the first and third respondents otherwise be dismissed.

   4.The amended application be dismissed in relation to the second and fourth respondents in respect of all declarations sought under s 357 and s 358 of the FW Act.

   5.A directions hearing be listed in order to program a hearing to determine any penalties to be imposed against the first respondent and the third respondent.

   6.(a)       The second and fourth respondents file any affidavit(s) (if appropriate), with submissions in support of an application for costs, within 21 days from the making of these orders. 

   (b)If any application for costs is made by the second and fourth respondents, the applicant file and serve any affidavit(s) and submissions in response, within 14 days of receipt of the second and fourth respondents’ submissions.

   (c)Any application made with supporting materials for costs be determined on the papers. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: 

Dated:        26 July 2013