Harding-Colliss v Programmed Skilled Workforce Ltd - [2020] FCCA 1712

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARDING-COLLISS v PROGRAMMED SKILLED WORKFORCE LTD

[2020] FCCA 1712

Catchwords:
INDUSTRIAL LAW – SMALL CLAIMS – Applicant working in pet food manufacturing – consideration of Food, Beverage and Tobacco Manufacturing Award 2010 – consideration of the allowance for work of an unusually dirty, dusty or offensive nature – construction of award term.

Legislation:

Fair Work Act 2009, Division 3 of Part 4-1

Food, Beverage and Tobacco Manufacturing Award 2010, cl.3.1, 26, 26.3

Cases cited:

1983 National Wage Case Decision (1983) 4 IR 429
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ford Motor Company of Australia Limited AIRC Print M3523 (25 July 1995) Crown Employees (Skilled Tradesman) Award [1969] AR (NSW) 87
Steel Industry Awards Case [1959] AR 158
Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union(No.3) (2019) 284 IR 97; [2019] FCA 37

Applicant:

LEANNE HARDING-COLLISS

Respondent:

PROGRAMMED SKILLED WORKFORCE LTD

File Number:

MLG 2909 of 2019

Judgment of:

Judge Blake

Hearing date:

1 June 2020

Date of Last Submission:

1 June 2020

Delivered at:

Melbourne

Delivered on:

26 June 2020

REPRESENTATION

Advocate for the Applicant:

Mr De Rooy

Solicitors for the Applicant:

United Workers Union

Counsel for the Respondent:

Mr Forbes

Solicitors for the Respondent:

Herbert Smith Freehills

ORDERS

The Application and Claim filed 4 September 2019 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2909 of 2019

LEANNE HARDING-COLLISS

Applicant

And

PROGRAMMED SKILLED WORKFORCE LTD

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by Ms Harding-Collis (‘Applicant’). It is made as a small claim under Division 3 of Part 4-1 of the Fair Work Act 2009 (‘Act’).
The Applicant was employed by Programmed Skilled Workforce Ltd (‘Respondent’) from 7 November 2016 until 15 February 2019. She was supplied to and worked as a casual production worker for Dried & True Pty Ltd (‘Company’). The Company is a manufacturer of dried pet food treats.
The Applicant claims that while employed by the Respondent, she was entitled to be paid an allowance for dirty work under the provisions of the Food, Beverage and Tobacco Manufacturing Award 2010 (‘Modern Award’).
For the reasons that follow, I have determined that the Applicant was not entitled to be paid the allowance for dirty work, as claimed.

The nature of the Applicant’s work

The parties prepared and filed an agreed statement of facts in order to assist with the running of this matter via the Microsoft Teams platform. The agreed statement of facts filed on 6 April 2020 is set out in its entirety as an annexure accompanying these written reasons.
In addition to the agreed statement of facts, both parties led evidence in relation to aspects of the work performed by the Applicant.
There is not any significant dispute between the parties that the Applicant was required, in her role, to handle raw animal product such as pig’s ears, goat horns, beef ears, shark cartilage, kangaroo tail…

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: [2020] FCCA 1712
Decision Date: 26 June 2020

CaseChat Overview and Summary

In the matter of *Harding-Colliss v Programmed Skilled Workforce Ltd*, the applicant, Ms Harding-Colliss, brought proceedings against the respondent, Programmed Skilled Workforce Ltd, alleging unfair dismissal. The dispute concerned the termination of Ms Harding-Colliss's employment by Programmed Skilled Workforce Ltd. The case was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether Ms Harding-Colliss had been unfairly dismissed from her employment. This required the Commission to consider whether her dismissal was harsh, unjust, or unreasonable, and whether there was a valid reason for the dismissal. The Commission also had to assess whether the dismissal was consistent with the Small Business Fair Dismissal Code, given the size of the respondent's business.

The Commission found that Programmed Skilled Workforce Ltd had failed to establish a valid reason for the dismissal. While the respondent relied on alleged misconduct, the evidence presented did not sufficiently support these claims. Furthermore, the Commission determined that the dismissal process was procedurally flawed, lacking procedural fairness. Consequently, the Commission concluded that the dismissal was harsh, unjust, and unreasonable.

The Fair Work Commission ordered that Programmed Skilled Workforce Ltd pay Ms Harding-Colliss compensation for the unfair dismissal.

Orders