FAULKNER v BIS INDUSTRIES LTD

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAULKNER v BIS INDUSTRIES LTD [2012] FMCA 592

INDUSTRIAL LAW – Services contract – whether there was an agreement that was covered by the Independent Contractors Act – workplace rights.

Fair Work Act 2009, ss.342, 338(1), 341, 345, 355, 362, 539
Federal Magistrates Court Rules, r.13.10(a)
Independent Contractors Act 2006, ss.5, 12, 16

Applicant: GREGORY REX FAULKNER

Respondent: BIS INDUSTRIES LTD

File Number: LNG 12 of 2012

Judgment of: Riethmuller FM

Hearing date: 28 May 2012

Date of Last Submission: 22 June 2012

Delivered at: Melbourne

Delivered on: 6 July 2012

REPRESENTATION

Counsel for the Applicant: The Applicant appearing in person by telephone link

Counsel for the Respondent: Mr Gray appearing by telephone link

Solicitors for the Respondent: King & Wood Mallesons

ORDERS

1. The application filed on 17 February 2012 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

LNG 12 of 2012

GREGORY REX FAULKNER

Applicant

And

BIS INDUSTRIES LTD

Respondent

REASONS FOR JUDGMENT

1. The respondent brought an application in a case for the applicant’s claim to be summarily dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules. 

2. The applicant’s claim is set out in an amended statement of claim filed on 1 June 2011.  The applicant says that he was a contractor who had entered into a contract with one Hine-Haycock to provide “Truck Driver Services”.  Hine-Haycock had entered into a services contract with the respondent to provide Truck Hire/Driver Services to the respondent at the respondent’s site in Bell Bay in Tasmania.

3. The applicant also says that his agreement with Hine-Haycock was a collateral arrangement within section 5 of the Independent Contractors Act, 2006.

4. In September 2010 the respondent alleged that the applicant had committed a series of safety breaches on the site.  There remains a dispute between the parties about this claim.  These breaches were particularised as:

   (a)     not completing pre-start sheets;

   (a)not wearing a seatbelt;  and

   (b)not ensuring headlights were illuminated. 

5. The respondent also alleged that he had lost faith in the applicant’s ability to safely perform the tasks he was required to perform.  The respondent, in correspondence, had set out that:

   Mr Faulkner had been trained in these procedures, yet still failed to comply with them.  The company takes seriously its focus on zero harm and will not tolerate individuals who do not have this same focus.

6. On 13 September the applicant alleges that the respondent ordered the applicant from the site and refused to allow the applicant to continue to provide services on the site. 

7. The applicant says that this conduct amounted to “adverse action” within the meaning of section 342 of the Fair Work Act (see section 342(1), item 3). It appears clear that the conduct in refusing to allow the applicant to continue to provide the services under the contract does fall within the meaning of “adverse action” under the Act, even though there was no contract between the applicant and the respondent.

8. In paragraph 13 of the statement…