Haire v WorkCo Australia Pty Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA

Haire v WorkCo Australia Pty Ltd (No 2) [2024] FCA 1266  

File number(s): VID 1048 of 2023
Judgment of: HORAN J
Date of judgment: 4 November 2024
Catchwords:

PRACTICE AND PROCEDURE – application by third and fourth respondents for summary dismissal and strike out of claims against them – whether reasonable prospect of successfully prosecuting claims against third and fourth respondents – whether statement of claim discloses reasonable cause of action – whether pleading evasive or ambiguous, or likely to cause prejudice, embarrassment or delay – applicant’s employment terminated by first respondent – alleged accessorial liability of third and fourth respondents for contraventions by first respondent of Pt 3-1 of Fair Work Act 2009 (Cth) (FW Act) – elements necessary to establish involvement in alleged contraventions under s 550(2) of FW Act – alleged contraventions by fourth respondent of Pt 3-1 of FW Act – where alleged that adverse action taken against applicant by fourth respondent – whether alleged adverse action taken by principal against independent contractor or person employed or engaged by independent contractor – where fourth respondent is foreign corporation – whether sufficient connection between fourth respondent and Australia – where real questions of fact and law to be determined – interlocutory application by third and fourth respondents dismissed

INDUSTRIAL LAW – Part 3-1 of Fair Work Act 2009 (Cth) – involvement in contravention of civil remedy provision – whether knowingly concerned in or party to principal contravention – whether adverse action taken by principal against independent contractor or person employed or engaged by independent contractor – whether sufficient connection with Australia
Legislation:

Fair Work Act 2009 (Cth) ss 14, 338(1)(a), 338(1)(b), 340(1)(a), 340(1)(b), 342(1), 346(a), 346(b), 550(2), 793

Federal Court of Australia Act1976 (Cth) s 31A

Superannuation Guarantee (Administration) Act 1992 (Cth)

Federal Court Rules 2011 (Cth) rr 16.21, 16.41, 16.43, 16.45, 26
Cases cited:

Agar v Hyde (2000) 201 CLR 552

Amcor Packaging (Australia) Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia [2006] FCA 1265; 157 IR 32

Ashbury v Reid [1961] WAR 49

Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347

Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (t/as Captain Cook College) (No 3) [2021] FCA 737; 154 ACSR 472

Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256

Banks v Alphatise Pty Ltd [2014] NSWSC 1437

Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279

Batistatos v Roads and Traffıc Authority (NSW) (2006) 226 CLR 256

Baweja v Capital Insurance Group Limited [2023] FWC 2401

Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978

Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; 164 IR 299

Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445; 302 ALR 1

Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955

Danthanarayana v Commonwealth of Australia [2016]…

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Details
Case
[2024] FCA 1266
Decision Date

CaseChat Overview and Summary

Haire v WorkCo Australia Pty Ltd (No 2) involved the applicant, Ms Haire, who brought claims against the first respondent, WorkCo Australia Pty Ltd, and the third and fourth respondents, Ms Klimen and Filecoin respectively. Ms Haire alleged that her employment was terminated by WorkCo in contravention of the Fair Work Act 2009 (Cth). She further sought to hold Ms Klimen and Filecoin accessorially liable for these contraventions. Ms Klimen and Filecoin applied for summary dismissal and/or striking out of the claims against them. The central issues were whether there was a reasonable prospect of successfully prosecuting the claims, and whether the statement of claim disclosed a reasonable cause of action. Further, the court considered whether the pleading was evasive, ambiguous, or likely to cause prejudice, embarrassment, or delay.

The court found that the claims against Ms Klimen and Filecoin involved complex questions of fact and law, including the elements necessary to establish accessorial liability under section 550(2) of the Fair Work Act, and whether adverse action was taken by Filecoin against Ms Haire. The court held that the statement of claim was not evasive or ambiguous, and did not contain matters likely to cause prejudice, embarrassment, or delay. Importantly, the court noted that there were real questions of fact and law to be determined, which precluded the application for summary dismissal. Consequently, the interlocutory application was dismissed.

The court ordered that the interlocutory application by Ms Klimen and Filecoin be dismissed, that they pay the applicant's costs of the interlocutory application, and that the proceeding be listed for a case management hearing on 6 December 2024 at 9:30am.

Orders

Orders of the court

1. The third and fourth respondents’ interlocutory application dated 12 July 2024 be dismissed.

2. The third and fourth respondents pay the applicant’s costs of the interlocutory application.

3. The proceeding be listed for a case management hearing on 6 December 2024 at 9.30am.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In relation to the other criticisms levelled by Ms Klimen and Filecoin at the ASOC, I do not consider that the allegation that Filecoin contravened the FW Act is “conclusory”. In so far as Ms Haire alleges that Filecoin determined that it would not engage her at all or on comparable terms, she is not required to plead the evidence that will be relied on to prove that allegation. In relation to the allegation that decisions of Filecoin were made or authorised by Ms Klimen, Ms Haire relies principally on allegations that Ms Klimen was the “operating mind and will” of Filecoin and that the decisions were made or authorised by her in that capacity. As well as establishing the liability of Filecoin as a body corporate under s 793 of the FW Act based on the conduct engaged in by Ms Klimen on its behalf and with her state of mind, this is also relied on to establish Ms Klimen’s accessorial liability under s 550 of the FW Act for any contraventions by Filecoin arising from that conduct and state of mind. CONCLUSION For the reasons set out above, the interlocutory application by Ms Klimen and Filecoin must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

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