King v Patrick Projects Pty Ltd

[2016] FCA 1479

FEDERAL COURT OF AUSTRALIA

King v Patrick Projects Pty Ltd [2016] FCA 1479

Appeal from:

Application for leave to appeal: King v Patrick Projects Pty Ltd [2016] FCA 1110

File number:

WAD 445 of 2016

Judge:

BARKER J

Date of judgment:

8 December 2016

Catchwords:

INDUSTRIAL LAW – claim that employer failed to provide required training – where employment terminated – where primary judge summarily dismissed proceeding – application for leave to appeal from primary judge’s decision – whether primary judge’s decision attended by sufficient doubt – whether obligation survived termination of employment relationship – application dismissed

Legislation:

Fair Work Act 2009 (Cth) s 739

Federal Court Rules 2011 (Cth) R 16.21(1)(e)

Date of hearing:

3 November 2016

Registry:

Western Australia

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

37

Counsel for the Applicants:

The Applicants appeared in person

Counsel for the Respondents:

Ms HR Millar

Solicitor for the Respondents:

K&L Gates LLP

ORDERS

WAD 445 of 2016

BETWEEN:

DANIEL KING

First Applicant

JASON DEENEY

Second Applicant

CHRIS HUGHES (and others named in the Schedule)

Third Applicant

AND:

PATRICK PROJECTS PTY LTD

First Respondent

ASCIANO LIMITED

Second Respondent

JUDGE:	BARKER J
DATE OF ORDER:	8 DECEMBER 2016

THE COURT ORDERS THAT:

1.The applicants’ application for leave to appeal be dismissed.

2.The applicants pay the costs of the respondents to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1. The first applicant’s, Mr Daniel King’s, employment with Patrick Projects Pty Ltd was terminated on about 30 April 2014.  The employment of the other five applicants with Patrick Projects was terminated in March 2014.  Together the six applicants are referred to as the applicants.

2. In April 2014, the applicants brought proceedings in the Fair Work Commission against Patrick Projects alleging its non-compliance with dispute resolution provisions contained in the Patrick Projects AMC Cargo Handling Agreement 2012-2015, that governed their employment (the application).

3. It appears that the applicants sought orders that Patrick Projects provide training, or payment in lieu of training, on the basis that the Agreement provided for such training.

4. Commissioner Cloghan at first instance in the Commission dismissed the application on the grounds that the Commission had no jurisdiction and that certain procedural steps required by the Agreement had not been complied with, but also on the basis that none of the applicants (apart from Mr King, whose employment had not then been terminated) were employees of Patrick Projects when they filed their application with the Commission.

5. Permission to appeal the Commissioner’s decision was then refused by the Full Bench of the Commission, which, although it refused to extend time for the filing of the appeal application, went on to consider the merits of the proposed appeal and concluded that it lacked merit because the Commission had been correct in finding it had no jurisdiction upon well-established authority in relation to…