Ledger v Stay Upright Pty Ltd

FEDERAL COURT OF AUSTRALIA

Ledger v Stay Upright Pty Ltd [2016] FCA 659

File number:

NSD 1171 of 2014

Judge:

BUCHANAN J

Date of judgment:

6 June 2016

Catchwords:

INDUSTRIAL LAW – whether employees engaged on a  casual basis – where employees provided services to employer over a long period of time – employees’ contracts stated engaged on a casual basis  – employees’ engagements varied – employees required to submit availability in advance – employees argued regular and systematic employment – evidence does not discharge onus to prove permanent employment

Legislation:

Fair Work Act 2009 (Cth), ss 12, 67, 67(2), 86, 95, 111, 111(1)

Workplace Relations Act 1996 (Cth), ss 172(2), 173, 227, 239(1)

Annual Holidays Act 1944 (NSW), ss 3, 3(1), 4, 4(3)(a), 4(3)(b)(ii)

Long Service Leave Act 1955 (NSW), ss 4, 4(11)(a)

Long Service Leave (Amendment) Act, 1985 (NSW), Act No. 54, Sch 1   

Educational Services (Post-Secondary Education) Award 2010 (Cth), cll 3, 3.1, 4, 4.1, 4.3(a), 10, 10.1, 10.2, 10.3, 10.3(b), 10.4, 10.4(a), 10.4(b), 10.4(c), 10.5, 10.6, 10.7, 14, 14.3, 14.5, 14.5(a), 21, 21.3, 25, 25.1, 26, 27, 28, 28.1, 29, 29.1

Cases cited:

Cameron v Durning [1959] AR (NSW) 142

In re Private Hospital Nurses (State) Award [1962] AR (NSW) 446

Reed v Blue Line Cruises Limited (1996) 73 IR 420

Thompson v Big Bert Pty Ltd t/as Charles Hotel [2007] FCA 1978; (2007) 168 IR 309

Date of hearing:

22 and 23 March 2016

Registry:

New South Wales

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

73

Counsel for the Applicants:

Mr J Phillips SC

Solicitor for the Applicants:

Hugh & Associates Lawyers

Counsel for the Respondent:

Mr J Darams

Solicitor for the Respondent:

FCB Workplace Law

ORDERS

NSD 1171 of 2014

BETWEEN:

AARON LEE LEDGER

First Applicant

LESLIE THOMAS REYNOLDS

Second Applicant

AND:

STAY UPRIGHT PTY LTD (ACN 002 099 069)

Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	6 JUNE 2016

THE COURT ORDERS THAT:

1.The application be dismissed.

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

REASONS FOR JUDGMENT

BUCHANAN J:

1. The respondent (“Stay Upright”) is a company which provides motorcycle training services.  The first and second applicants were employed by Stay Upright.  The overall periods (or individual periods) of employment are not at issue.  Stay Upright contends that each was employed during those periods on a casual basis.  That is the central question in the proceedings. 

2. Mr Aaron Ledger was engaged as a “senior instructor” and Mr Leslie Reynolds was engaged as an “instructor”, although in each case the base rate of pay as at 21 January 2014 was $32 per hour.  Mr Ledger’s first engagement relevant to the present proceedings commenced on 7 October 2007 and he continued (and continues) to be engaged thereafter, or was engaged from time to time, as explained hereunder.  Mr Reynolds’ first engagement commenced on 21 October 1996 and his engagements ceased on 19 May 2015. 

3. During the…