Linfox Australia Pty Ltd v Terence Howell

Linfox Australia Pty Ltd (the Appellant) appealed against a decision by Deputy President Gooley in Brisbane on 15 November 2017, which determined that Terence Howell (the Respondent) was a person protected from unfair dismissal under section 382 of the Fair Work Act 2009 (Cth) at the time his employment was terminated by Linfox. The primary issue before the court was whether the Linfox Australia (Bulk Petroleum) Agreement 2014 applied to Mr Howell’s employment, thereby making him eligible for protection under the Act. The court had to decide if the Deputy President erred in concluding that Mr Howell was covered by the Linfox Agreement. Linfox contended that the Agreement only applied to drivers, whereas Mr Howell was not a driver but rather a worker at a site listed in the Agreement.

The court addressed the jurisdictional objection raised by Linfox concerning the applicability of the Linfox Agreement to Mr Howell. The Deputy President had dismissed the objection and concluded that the Agreement did indeed apply to Mr Howell. The court had to assess whether there was sufficient error on the part of the Deputy President to warrant an appeal. Given the stringent requirements under section 400 of the Act, the court had to consider whether it was in the public interest to grant permission to appeal and whether the appeal involved a significant error of fact.

The court found that the Appellant had not demonstrated that the Decision involved a significant error of fact warranting an appeal. The Appellant’s arguments regarding the potential flow-on consequences of the Decision on other similar agreements were deemed speculative and unpersuasive. The court emphasised that each agreement must be construed on its own terms. Furthermore, the court held that the appeal was not an appropriate vehicle to consider the interpretation of sections 52 and 53 of the Act. Therefore, the appeal was dismissed, and permission to appeal was not granted.