FAULKNER v BIS INDUSTRIES LTD
[2012] FMCA 592
•6 July 2012
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
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
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.
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.
The applicant also says that his agreement with Hine-Haycock was a collateral arrangement within section 5 of the Independent Contractors Act, 2006.
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.
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.
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.
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.
In paragraph 13 of the statement of claim, the applicant alleges that the adverse action is “unfair/unjust”. In the most recent amendments to the statement of claim, the applicant alleges that the adverse action was taken against him contrary to section 338(1)(a) and (c) of the Act. In the alternative, the applicant relies upon section 355(b), (c) and (d) of the Act, together with section 362. Finally, the applicant relies upon section 345.
It is appropriate to deal with each of these matters in turn.
Independent Contractors Act
Pursuant to the Independent Contractors Act, the agreement between the applicant and Hine-Haycock would not be a services contract that has the requisite constitutional connection as a result of the provisions of section 5(2) of that Act.
With respect to the claims relating to the Independent Contractors Act, the applicant claims that his contract with Hine-Haycock, is a “collateral arrangement”, that fell within the definition of a services contract for the purpose of section 5 of the Independent Contractors Act as a result of section 5(4).
Section 5 provides as follows:
5 [Services contract]
General meaning
(1) A services contract is a contract for services:
(a) to which an independent contractor is a party; and
(b) that relates to the performance of work by the independent contractor; and
(c) that has the requisite constitutional connection specified in subsection (2).
Note: Conditions or collateral arrangements relating to a services contract may be taken to be part of the services contract: see subsection (4).
The requisite constitutional connection
(2) A contract for services has the requisite constitutional connection if:
(a) at least one party to the contract is:
(i) a constitutional corporation; or
(ii) the Commonwealth or a Commonwealth authority; or
(iii) a body corporate incorporated in a Territory in Australia; or
(b) one or more of the following subparagraphs is satisfied:
(i) the work concerned is wholly or principally to be performed in a Territory in Australia;
(ii) the contract was entered into in a Territory in Australia;
(iii) at least one party to the contract is a natural person who is resident in, or a body corporate that has its principal place of business in, a Territory in Australia.
(3) Without limiting its effect apart from this subsection, subparagraph (2)(a)(i) also has the effect it would have if the reference to a constitutional corporation were, by express provision, confined to a constitutional corporation that has entered into the contract for the purposes of the business of the corporation.
Conditions and collateral arrangements
(4) A condition or collateral arrangement that relates to a services contract is taken to be part of that services contract if, were the condition or arrangement itself a contract for services, it would have the requisite constitutional connection.
In this case, there appears to be little doubt that the contracts involved the performance of work by an independent contractor. The only basis for a requisite constitutional connection that has been pleaded is that the respondent is a constitutional corporation. Clearly, the pleaded contract between Hine-Haycock and the respondent is prima facie a services contract within the meaning of section 5.
The applicant pleads that his contract with Hine-Haycock would be a “conditional or collateral arrangement” that relates to the services contract between Hine-Haycock and the respondent and is therefore taken to be part of that services contract. For this purpose, he relies upon section 5(4). A careful reading of section 5(4) shows that the collateral arrangement itself must have the requisite constitutional connection. In this case, there is no constitutional connection with respect to a contract between Hine-Haycock and the applicant, as neither are a constitutional corporation, a Commonwealth authority, or a body incorporated in a Territory, nor is it said that the work was to be performed in a Territory or that the contract was entered into with a Territory (the contract and work all occurring in Tasmania).
As a result, on the case as pleaded, I am not persuaded that the applicant has pleaded an arrangement that is covered by the Independent Contractors Act.
I also note that even if the applicant did have an agreement that was covered by the Independent Contractors Act, it would only give rise to rights under section 12 of that Act to apply to the court to review the contract on the basis that it was unfair or harsh, which, if successful, would enable the court to vary the contract under section 16. It would not automatically import the protection provided to employees by the Fair Work Act 2009 with respect to wrongful dismissal.
Thus, on the relevant provisions of the Fair Work Act that the applicant relies upon, the only workplace right that the applicant could have, if he were covered by the Independent Contractors Act, is a right to apply to the court to review the contract between him and Hine-Haycock.
Workplace Right - Section 341
The applicant relies upon the meaning of workplace rights set out in section 341(1)(c)(i), which provides, relevantly:
341 [Meaning of workplace right]
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment. (emphasis added)
Section 341(1)(c)(i) could only relate to any right of the applicant to apply to the court under the Independent Contractors Act for a review of his contract. The applicant, if he was covered by the Independent Contractors Act does not fall within section 341(1)(c) as his rights would not be to apply to the court, but would be within section 341(1)(b).
Section 355 and 362 Claim
Section 355 provides:
355 [Coercion--allocation of duties etc. to particular person]
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) employ, or not employ, a particular person; or
(b) engage, or not engage, a particular independent contractor; or
(c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or
(d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.
Note: This section is a civil remedy provision (see Part 4-1).
Section 362 provides:
362 [Advising, encouraging, inciting or coercing action]
(1) If:
(a) for a particular reason (the first person's reason ), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and
(b) the action, if taken by the second person for the first person's reason, would contravene a provision of this Part;
the first person is taken to have contravened the provision.
(2) Subsection (1) does not limit section 550.
The applicant’s claim therefore sounds in the proposition that the respondent coerced, advised, encouraged or incited Hine-Haycock to take the action against him and stop him working on the site.
The operation of section 362 is such that the respondent is taken to have contravened the provision if Hine-Haycock took the action for the reasons of the respondent.
Section 355 of the Fair Work Act relates to coercion. However, the concept of coercion requires an element of wrongfulness or unlawfulness. In the arrangements that are in place there is nothing pleaded that is wrongful or unlawful in the respondent terminating the agreement with Hine-Haycock. To the extent that the agreement between Hine-Haycock and the applicant did not make provision for “fair” termination payments, at best there is open a claim to the court to review that contract under the Independent Contractors Act (if that agreement was within the ambit of that Act). It is not pleaded that the respondent in some way attempted to prevent such a claim by the applicant.
With respect to section 362, the conduct of Hine-Haycock in terminating the applicant, on the pleadings before me, does not appear to have been wrongful or unlawful even if done solely for the reason the respondent gives for refusing to allow the applicant to continue. Potentially the contract with Hine-Haycock may be the subject of a review of the terms of the termination provisions of the contract between the applicant and Hine-Haycock if he is within the Independent Contractors Act. Thus, the applicant cannot bring himself within section 362.
Section 345 Claim
Section 345 of the Act says as follows:
345 [Misrepresentations]
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
With respect to section 345, it is pleaded that the respondent knowingly or recklessly made a false or misleading representation “by stating that the applicant had no claim because he was a contractor”. It appears that on the material that is pleaded that was not a misrepresentation, but in fact accurate. Had the applicant had a claim under the Independent Contractors Act, then at best he would have had an option of seeking a review of his contract, with Hine-Haycock, but not against the respondent. Any review of his contract with Hine-Haycock would require him to show that his contract with Hine-Haycock was unfair. Nothing is pleaded about this or that the respondent knew what the actual terms of the applicant’s engagement with Hine-Haycock actually were.
Section 338 Claim
Section 338 of the Act extends the coverage of the Act to action taken by constitutionally covered entities. It appears clear that the respondent is a constitutionally covered entity (see section 338(2)(a)) and therefore the respondent is subject to the provisions of part 3-1 of the Fair Work Act. This section, of itself, extends coverage of the Act to the respondent, but does not create a right of itself, nor does it extend coverage to Hine-Haycock.
Conclusion
In short, because the applicant was not in an employment relationship with the respondent (or Hine-Haycock), he does not ultimately receive the benefits of the protections in the Fair Work Act 2009 for employees. In these circumstances, he is not able to demonstrate that he has a claim under the provisions that is arguable.
The relevant rules relating to summary dismissal, rule 13.10, provides:
13.10 [Disposal by summary dismissal]
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Note For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see section 118 of the Family Law Act.
It is clear, for the reasons that I have set out above, that the applicant has not shown an arguable case. I find that he has no reasonable prospects of successfully prosecuting the claim. Therefore, the application should be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 6 July 2012
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