Fong v Halliburton Australia Pty Ltd - [2019] FCCA 2885

FEDERAL CIRCUIT COURT OF AUSTRALIA

FONG & ORS v HALLIBURTON AUSTRALIA PTY LTD

[2019] FCCA 2885

Catchwords:
INDUSTRIAL LAW – Alleged contraventions – alleged underpayments of various entitlements – claim for reimbursement of income tax – claims for additional annual leave.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 16, 18, 22, 35, 87, 90, 94, 113, 117, 119, 545,

546, 570

Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 16, 75
Federal Circuit Court of Australia Rules 2001 (Cth), rr.1.03, 7.01, 16.01
Long Service Leave Act 1987 (SA)
Long Service Leave Act 1958 (WA), ss.4, 8

Cases cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Baker Hughes Australia Pty Ltd v Venier (2016) 96 WAIG 1488
Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245
ECH Incorporated v Halliday & Ors [2011] FCAFC 51; (2011) 192 FCR 281; (2011) 207 IR 76; (2011) 63 AILR 101-332
Gallagher v BHP Billiton Nickel West Pty Ltd [2016] FCCA 3367
Kioa v West [1985] HCA 81; (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321
Lukies v S2V Consulting Pty Ltd (ACN 123 096 819) [2018] FCCA 1431
Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1
Pearce v Florenca (1976) 135 CLR 507
Shop, Distributive & Allied Employees’ Association v Harris Scarfe Australia
Pty Ltd [2014] FCA 283
Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu [2015] FCA 1098
WZASX v Minister for Immigration & Border Protection [2017] FCA 1415

The Shorter Oxford English Dictionary on Historical Principles, Vol. II (Oxford: Clarendon Press, 1973)

First Applicant:

FOOK-SENG (GEORGE) FONG

Second Applicant:

JAMIE CHRISTIAN ALBANIS

Third Applicant:

PETER REGAN

Fourth Applicant:

FRANLIN (FRANKLIN) (JAMES ANTHONY) LOPEZ

Fifth Applicant:

AARON LENG KEE

Sixth Applicant:

JEFFREY CRAIG CONWAY

Respondent:

HALLIBURTON AUSTRALIA PTY LTD

File Number:

PEG 297 of 2016

Judgment of:

Judge Antoni Lucev

Hearing dates:

6, 7, 8, 9 and 10 August 2018

Date of Last Submission:

10 August 2018

Delivered at:

Sydney (via video-link to Perth)

Delivered on:

10 October 2019

(delivered by video link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

REPRESENTATION

Counsel for the Applicant:

Mr T Caspersz

Solicitors for the Applicant:

Workplace Law Perth

Counsel for the Respondent:

Mr J Blackburn SC

Solicitors for the Respondent:

HLS Legal

ORDERS

That the application, as amended, be dismissed.
That the respondent have leave to file and serve, within 10 days, an application in a case for the costs of the claim made by the first and second applicants for income tax reimbursement.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 297 of 2016

FOOK-SENG (GEORGE) FONG

First Applicant

JAMIE CHRISTIAN ALBANIS

Second Applicant

PETER REGAN

Third Applicant

FRANLIN (FRANKLIN) (JAMES ANTHONY) LOPEZ

Fourth Applicant

AARON LENG KEE

Fifth Applicant

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: [2019] FCCA 2885
Decision Date: 10 October 2019 (delivered by video link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

CaseChat Overview and Summary

The applicant, Mr. Fong, brought proceedings against the respondent, Halliburton Australia Pty Ltd, alleging contraventions of the Fair Work Act 2009 (Cth) concerning underpayments of various entitlements, including claims for reimbursement of income tax and additional annual leave. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether Mr. Fong had been underpaid his entitlements under the relevant industrial instruments and legislation, and if so, the quantum of those underpayments. Specifically, the Court was required to determine the correct calculation of his entitlements, including annual leave, and whether any tax paid by Mr. Fong on amounts he claimed were underpaid should be reimbursed by the respondent.

Judge Antoni Lucev found that Mr. Fong had not established his claims for underpayment of entitlements. The Court's reasoning focused on the interpretation of the employment agreement and relevant award provisions, concluding that the payments made by Halliburton Australia Pty Ltd were in accordance with the contractual and statutory obligations owed to Mr. Fong. Consequently, the claims for reimbursement of income tax and additional annual leave were dismissed.

Orders