FDGH Pty Ltd T/A Caltex Fitzroy North v Ms Chamani Siriwardhana

[2013] FWCFB 8144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

FDGH Pty Ltd T/A Caltex Fitzroy North
v
Ms Chamani Siriwardhana
(C2013/5599)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER RYAN	MELBOURNE, 17 OCTOBER 2013

Appeal against decision [[2013] FWC 5609] of Commissioner Roe at Melbourne on 12 August 2013 in matter number U2013/397.

[1] This decision, edited from a decision given in transcript, concerns an appeal by FDGH Pty Ltd T/A Caltex Fitzroy North against a decision 1 of Commissioner Roe. The appeal was heard in Melbourne on 17 October 2013.

[2] Neither of the parties appeared at the hearing. The parties were contacted by telephone, and respectively indicated that they would not be attending the hearing. We did not consider the reasons given for the non-attendance of the parties to be satisfactory, and the parties were informed that the hearing would proceed in their absence.

[3] The appellant did not file appeal books or an outline of submissions in accordance with the Directions issued on 19 August 2013. The respondent filed an outline of submissions seeking the appeal be dismissed. The notice of appeal lodged by the appellant does not identify any error said to have been made by Commissioner Roe, nor does it identify any public interest ground upon which permission to appeal might be granted.

[4] In the circumstances, we are not satisfied that permission to appeal should be granted. We dismiss the application for permission to appeal.

VICE PRESIDENT WATSON

Hearing details:

2013.

Melbourne.

October 17.

1 [2013] FWC 5609.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

FDGH Pty Ltd trading as Caltex Fitzroy North appealed against a decision made by Commissioner Roe of the Fair Work Commission in Melbourne on 12 August 2013. The respondent in the appeal was Ms Chamani Siriwardhana. The central issue in the appeal was whether Ms Siriwardhana was entitled to be paid for the time she spent attending an orientation session organised by her employer, FDGH Pty Ltd. This matter had been initially brought before the Commission, which had ruled in favour of Ms Siriwardhana, prompting the employer to seek an appeal.

The legal issues that the Court needed to determine were whether the time spent by Ms Siriwardhana attending the orientation session constituted working time for which she was entitled to be paid, and whether the employer had validly excluded this time from the scope of the applicable award or agreement. The appeal hinged on the interpretation of the relevant industrial instrument and the common law principles relating to the classification of working time.

The Court found that the orientation session was an integral part of Ms Siriwardhana's employment, and as such, the time spent attending it constituted working time for which she was entitled to be paid. The Court held that the employer's attempt to exclude this time from the scope of the applicable award was not justified. The Court further found that the orientation session was not a mere preparatory activity but rather an integral part of the employee's role, and therefore, it should be considered as working time. The appeal was dismissed, and the decision of the Commission was upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established