Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate

In this case, Linkhill Pty Ltd appealed against the decision of the Federal Circuit Court, which found that Linkhill had contravened the Workplace Relations Act 1996 (Cth) by engaging workers as independent contractors instead of employees. The central issue in this appeal was whether the payments made by Linkhill to the workers could be offset against the award entitlements which the primary judge had found Linkhill was obliged to pay. The Director of the Fair Work Building Industry Inspectorate opposed the appeal, arguing that Linkhill had not raised the set-off argument at the trial and therefore should not be allowed to raise it on appeal. The court considered whether it was expedient in the interests of justice to allow the new argument to be advanced on appeal. The court held that there was no explanation provided by Linkhill as to why the set-off argument was not raised at trial, and the Director was not aware of the availability of the set-off argument and did not conceal it from the court.

The court concluded that it was not expedient in the interests of justice to allow Linkhill to raise the set-off argument on appeal, as there was no justification for Linkhill's failure to raise the argument at trial. Furthermore, the Director had pleaded the source of the claimed award entitlements and particularised the underpayments of award entitlements in respect of each of the ten employees, which meant that the Director was not concealing any material matter. Consequently, the court dismissed the appeal. The court extended the time within which to institute the appeal and dismissed the appeal.