FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORRISON v ISS AUSTRALIA | [2019] FCCA 1183 |
| Catchwords: INDUSTRIAL LAW – Termination of employment – whether contravention of a general protection under Fair Work Act 2009 (Cth). |
| Legislation: Occupational Health and Safety Act 1994 (WA), ss.4, 42, 43 |
| Respondent: | ISS AUSTRALIA T/A ISS FACILITY SERVICES PTY LTD |
| File Number: | PEG 38 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 2, 3 and 5 February 2015 |
| Date of Last Submission: | 5 February 2015 |
| Delivered at: | Perth |
| Delivered on: | 10 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr G MacLean |
| Solicitors for the Applicant: | MacLean Legal |
| Counsel for the Respondent: | Mr J Moore (Respondent’s in-house lawyer) |
ORDERS
The applicant is to file and serve any application to extend time under s.370(a)(ii) of the FW Act, together with any affidavits, and an outline of submissions, by 24 May 2019.
The respondent is to file and serve any affidavits in opposition to the application for an extension of time, and an outline of submissions, by 7 June 2019.
Any application for an extension of time be listed for hearing at 2.00pm on 12 June 2019, and the proceedings are otherwise adjourned to that time and date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
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- AGLC
- Morrison v ISS Australia [2019] FCCA 1183
- Case
- [2019] FCCA 1183
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the facilities where Mr Morrison worked fell within the definition of "mining operations" or "workplace" as defined by the MSI Act. Specifically, the court had to consider whether the operation of residential and recreational facilities, and the ground used for them, located on a mining tenement and used solely in connection with mining operations, were included within the scope of the Act. Furthermore, the court needed to ascertain whether Mr Morrison's role in servicing and maintaining these facilities qualified him as an employee working in a "workplace" under the MSI Act, thereby directing complaints to the DMP rather than WorkSafe.
Judge Antoni Lucev reasoned that the evidence, though limited, indicated that Mr Morrison was engaged in the service and maintenance of catering and residential facilities. He found that these facilities, located on the mining tenement and used in connection with the Roy Hill Mine, were considered part of the "mining operations" and thus a "workplace" under the MSI Act. Consequently, the court determined that complaints regarding workplace safety in this context should be made to the Director of Mines and Resource Safety, who possesses the appropriate powers to seek compliance with the MSI Act. The court also noted that Mr Morrison had denied making a complaint to WorkSafe, stating he had only complained to the DMP.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 4(1)(g) and (k) of the Mines Safety and Inspection Act 1994 (WA) (“MSI Act”) reads:mining operations means any method of working by which the earth or any rock structure, coal seam, stone, fluid, or mineral bearing substance is disturbed, removed, washed, sifted, crushed, leached, roasted, floated, distilled, evaporated, smelted, refined, sintered, pelletized, or dealt with for the purpose of obtaining any mineral or rock from it for commercial purposes or for subsequent use in industry, whether it has been previously disturbed or not, and includes – …(g) the operation of any support facilities on the minesite, including mine administration offices, workshops, and services buildings; and…(k) operation of residential facilities and recreational facilities and the ground used for that purpose, where such facilities are located on a mining tenement and are used solely in connection with mining operations; and…workplace in relation to a mine, means a place, whether or not in a vehicle, building, or other structure, where employees or self-employed persons work or are likely to be in the course of their work, but does not include catering, residential, or recreational facilities for employees or self-employed persons except in the case of persons who are employed to service and maintain those facilities. In the Morrison Affidavit at [3] and [6], the workplace or worksite was described as a “Mine Site Project” and a “large resource construction site”. In cross examination, Mr White stated that the type of work Mr Morrison was involved in was “all camp-related plumbing”, that is “purely accommodation. Kitchen… And office”, and also included a reverse osmosis and waste water treatment plant that was used for domestic consumption: Transcript, page 82. Having regard to the above evidence (which is admittedly very limited) it would appear that Mr Morrison was engaged in the service and maintenance of facilities of a catering and residential kind, being buildings or other structures where he worked, or was likely to be in the course of his work, and that those buildings or structures were buildings or structures which were in relation to the Roy Hill Mine or rail camps and therefore subject to the MSI Act as the appropriate “workplace law”. In light of this finding, it is the Director of Mines and Resource Safety at the DMP to whom complaints should be made, and it is an inspector of mines who has the appropriate powers to seek compliance with the MSI Act: MSI Act, s.20. With respect to the evidence of a complaint to WorkSafe by Mr Morrison, the evidence is as follows:a)Mr Morrison denied he had made a complaint to WorkSafe, and the first that he became aware of the involvement of WorkSafe was at the Termination Meeting, as he had only ever made a complaint to the DMP on 29 September 2013: Morrison Affidavit at [85]; andb)Ms Robertson was contacted by a WorkSafe Inspector on 2 October 2013 regarding complaints made about Mr St George, namely the smoking of synthetic cannabinoids and his medical condition. At no time during the phone call was it revealed that Mr Morrison was the source of the complaint to WorkSafe, rather Ms Robertson merely inferred that that was the case: Transcript, page 152.