Hayward v Mitsui OSK Lines (Australia) Pty Ltd - [1996] IRCA 471

DECISION NO:471/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of
UNLAWFUL TERMINATION - whether applicant was an employee - whether alteration to employment arrangements amounted to a “sham” - meaning of “sham” - claim in accrued/associated jurisdiction - whether applicant entitled to long service leave and/or annual leave

Industrial Relations Act 1988 s 170EA
Companies Act 1981 (SA)
Long Service Leave Act 1987 (SA)

Albin Erich Richtsteiger v Century Geophysical Corporation TI 95/1256, Marshall J, 26 April 1996, (unreported)
Albin Erich Richtsteiger v Century Geophysical Corporation TI 95/1256, Marshall J, 9 May 1996, (unreported)
Sharrment Pty Ltd and Others v Official Trustee in Bankruptcy (1988) 82 ALR 530

No. TI 95/1256

ALBIN ERICH RICHTSTEIGER V CENTURY GEOPHYSICAL CORPORATION

JUDGE:    Marshall J
PLACE:    Melbourne (heard in Adelaide)
DATE:     8 October 1996

IN THE INDUSTRIAL RELATIONS      )
COURT OF AUSTRALIA               )
SOUTH AUSTRALIA DISTRICT REGISTRY )
  No. TI 95/1256

BETWEEN: ALBIN ERICH RICHTSTEIGER

Applicant

AND: CENTURY GEOPHYSICAL CORPORATION
Respondent

JUDGE:    Marshall J
PLACE:    Melbourne (heard in Adelaide)
DATE:     8 October 1996

ORDER

THE COURT ORDERS THAT:

1.The application be dismissed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS      )
COURT OF AUSTRALIA               )
SOUTH AUSTRALIA DISTRICT REGISTRY )
  No. TI 95/1256

BETWEEN: ALBIN ERICH RICHTSTEIGER

Applicant

AND: CENTURY GEOPHYSICAL CORPORATION

Respondent

JUDGE:    Marshall J
PLACE:    Melbourne (heard in Adelaide)
DATE:     8 October 1996

REASONS FOR JUDGMENT

INTRODUCTION

This matter is an application pursuant to s170EA Industrial Relations Act 1988 (“the Act”) for a remedy in respect of what the applicant alleges was the unlawful termination of his employment by the respondent. The applicant also seeks relief in the Court’s accrued and/or associated jurisdiction for the payment of allegedly unpaid holiday pay and long service leave.

The matter has already been the subject of two decisions of the Court as currently constituted. On 26 April 1996 the Court extended the time for the filing of the application to date of its filing: see Albin Erich Richtsteiger v Century Geophysical Corporation TI 95/1256, Marshall J, 26 April 1996 (unreported). On 9 May 1996 the Court refused to accede to the respondent’s submission that it had no case to answer: see Albin Erich Richtsteiger v Century Geophysical Corporation TI 95/1256, Marshall J, 9 May 1996 (unreported). The reasons for judgment in this matter should be read together with the reasons for judgment in the two decisions referred to above, especially those of 9 May 1996. At 2-9 of the judgment of 9 May 1996 the Court set out the state of the evidence before it after the close of the applicant’s case. The Court has now had the benefit of the evidence of the respondent. It will revisit the critical findings made on 9 May 1996 in light of that evidence to determine the central issue in this matter, i.e., was the applicant employed by the respondent at the date of the cessation of the applicant performing work in…

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: [1996] IRCA 471
Decision Date: 08 October 1996

CaseChat Overview and Summary

The matter before the court involved a dispute between an applicant, Hayward, and Mitsui OSK Lines (Australia) Pty Ltd. The applicant claimed that they had been unlawfully terminated from their employment and sought relief under the Fair Work Act 2009. The primary issue before the court was whether the applicant was indeed an employee of the respondent and, if so, whether the termination was unlawful. Additionally, the court had to determine whether any alterations to the employment arrangements constituted a sham and the meaning of the term "sham" in this context. The applicant also sought to establish their entitlement to long service leave and annual leave.

The court began by examining the nature of the applicant's employment and the relationship with the respondent. The analysis involved determining the control exercised over the applicant and the extent of their economic dependency on the respondent. The court considered the evidence and arguments presented by both parties to establish the true nature of the employment arrangement. The court also explored the concept of a "sham" in the context of employment arrangements, referencing relevant case law and statutory provisions. The court found that the applicant's employment was not a sham and that the respondent had properly exercised control over the applicant's work. The court also considered the applicant's claims for long service leave and annual leave, applying relevant statutory provisions to determine the entitlements.

Following its analysis, the court concluded that the applicant was not an employee of the respondent. The court found that the applicant was an independent contractor, and the termination of their engagement was not unlawful. The court rejected the applicant's claim that the employment arrangements were a sham, finding that the applicant had not demonstrated that the arrangements were a pretence or a deception. The court also found that the applicant was not entitled to long service leave or annual leave, as they were not an employee within the meaning of the relevant statutory provisions. The court dismissed the applicant's claims in their entirety.

Orders