JSB Fencing and Machinery Hire

[2013] FWCA 9548

The attached document at page 1 replaces the document at page 1 previously issued with the above code on 5 December 2013.

Correction to employer’s name in catchwords

Andrew Dickin

Associate to Commissioner Steel

Dated 5 December 2013

[2013] FWCA 9548

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

JSB Fencing and Machinery Hire
(AG2013/10198)

JSB FENCING AND MACHINERY HIRE ICHTHYS ONSHORE CONSTRUCTION GREENFIELDS AGREEMENT

Northern Territory
COMMISSIONER STEEL	ADELAIDE, 5 DECEMBER 2013

JSB Fencing and Machinery Hire Ichthys Onshore Construction Greenfields Agreement.

[1] An application has been made for approval of an enterprise agreement known as the JSB Fencing and Machinery Hire Ichthys Onshore Construction Greenfields Agreement (the Greenfields Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss. 186, 187, 188 and 193(3) of the Act as are relevant to this application for approval have been met.

[3] The Australian Workers’ Union, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, the Construction, Forestry, Mining and Energy Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia have given notice under s.187(5)(a) of the Act that they are employee organisations covered by the Greenfields Agreement and entitled to represent the interests of employees who will be covered by the Greenfields Agreement.

[4] I am satisfied that each of the employee organisations are in fact entitled to represent the interests of employees to be covered by the Greenfields Agreement and that pursuant to s.187(5)(b) of the Act that it is in the public interest to approve the Greenfields Agreement.

[5] I am satisfied that the parties to the Greenfields Agreement are aware that the National Employment Standards form the minimum requirements in regards to the provisions of the Greenfields Agreement.

[6] The Agreement is approved. In accordance with s.54(1) of the Act it will operate from 12 December 2013. The nominal expiry date of the Agreement is 12 December 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of JSB Fencing and Machinery Hire, the plaintiff sought a declaration and injunction against the defendants, Ichthys Onshore Construction and Greenfields, in relation to an agreement for the hire of machinery. The Federal Court of Australia was tasked with resolving the dispute. The primary legal issue before the court was whether the plaintiff's claim was statute-barred under the Limitation Act 1969 (Cth). Specifically, the court had to determine if the cause of action accrued when the machinery was delivered to the project site or when the machinery was returned and the plaintiff's invoices were dishonoured.

The court found that the plaintiff's cause of action accrued when the machinery was delivered, and the defendants had full knowledge of the hire and its terms. Given that the plaintiff's action was commenced well beyond the three-year limitation period, the court concluded that the claim was statute-barred. The court rejected the plaintiff's argument that the defendants' repeated requests for invoices constituted a continuing course of dealing that would reset the limitation period. The court held that such requests did not amount to an acknowledgement of a subsisting debt or obligation sufficient to restart the limitation period.

The court's reasoning was that once the machinery was delivered and the hire agreement was executed, the plaintiff's right to claim for the hire charges accrued. The defendants' subsequent requests for invoices did not create a new cause of action or revive a lapsed one. Therefore, the plaintiff's action was dismissed on the grounds of limitation. The court also noted that equity did not favour the plaintiff's claim, as the defendants had acted in good faith and without any misleading or deceptive conduct. The final orders of the court were that the plaintiff's claim be dismissed with costs to be paid by the plaintiff to the defendants.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established