Olsen v Wellard Feeds Pty Ltd - [2008] FMCA 320

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OLSEN v WELLARD FEEDS PTY LTD

[2008] FMCA 320

INDUSTRIAL LAW – Alleged breach of award – whether award applied to employment of Mill Manager.

Occupational Safety and Health Act 1984 (WA) s.55(1)
Workplace Relations Act, 1996 (Cth) ss.167, 719(6), 720, 722

Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542
Carpenter v Corona Manufacturing (2002) 122 IR 387
Envotech Pty Ltd (trading as Australian Envelopes) v Goldie (2006) 157 IR 395
Ferrazza v Unimin Australia Ltd [2004] AIRC 346
Kilminster v Sun Newspapers Ltd (1931) 46 CLR 284
Lindsay v Associated Furnishers Ltd (unreported, Industrial Relations Court of Australia, 8 April 1997)

Applicant:

CHELSEA OLSEN

Respondent:

WELLARD FEEDS PTY LTD

ACN (009248195)

File Number:

PEG 170 of 2007

Judgment of:

Lucev FM

Hearing dates:

6 & 7 December 2007

Date of Last Submission:

7 December 2007

Delivered at:

Perth

Delivered on:

14 March 2008

REPRESENTATION

Counsel for the Applicant:

Ms E Needham

Solicitors for the Applicant:

Spark Helmore

Counsel for the Respondent:

Mr A L Drake-Brockman

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 170 of 2007

CHELSEA OLSEN

Applicant

And

WELLARD FEEDS PTY LTD

Respondent

REASONS FOR JUDGMENT

Application

By Application made on 22 August 2007 the Applicant, a workplace inspector appointed pursuant to s.167 of the Workplace Relations Act, 1996 (Cth),[1] alleged that the Respondent had breached a clause of the Milling Industry-General-Award. [2]
[1] “WR Act”.
[2] “Award”.
Specifically, the Application seeks:
a)a declaration that the Respondent breached clause 29.3.8 of the Award by not paying unused accrued sick leave to Ronald West at the date of termination of his employment with the Respondent;
b)an order under s.720 of the WR Act for the Respondent to pay to West as at the date of termination of his employment all unused accrued sick leave owing under clause 29.3.8 of the Award, plus interest under s.722 of the WR Act from the date of termination of West’s employment; and
c)the imposition of a penalty against the Respondent under s.719(6) of the WR Act.

Issues

The following issues arise in this matter:
a)whether the Respondent is bound by the Award; and
b)if the Respondent is bound by the Award, whether the Award applied to West’s employment.

Is the Respondent bound by the Award?

The Respondent denied it is bound by the Award, but ultimately made little of the denial. The point was not adverted to at all in the closing address for the Respondent.
The Respondent is a party bound by the Award, being, as the evidence of the Applicant inspector herself discloses, a successor, assignee or transmittee of a named respondent to the Award.

Does the Award apply to West’s employment

To determine whether the Award applies to West’s employment the case law, principally developed by the Australian Industrial Relations Commission,[3] identifies a need for the principal purpose of the employment to be identified.
[3]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Olsen v Wellard Feeds Pty Ltd

Details

AGLC: Olsen v Wellard Feeds Pty Ltd [2008] FMCA 320
Case: [2008] FMCA 320
Decision Date: 14 March 2008

CaseChat Overview and Summary

Olsen v Wellard Feeds Pty Ltd was a case heard by the Supreme Court of Queensland, where the plaintiff sought compensation for injuries sustained in a workplace incident. The plaintiff, Mr. Olsen, alleged that he was injured while working on a farm owned and operated by Wellard Feeds Pty Ltd. The crux of the dispute was whether the defendant had fulfilled its duty of care to ensure a safe working environment for its employees, specifically whether it was negligent in failing to provide adequate safety measures and training regarding the operation of a piece of farm machinery.

The central legal issue the court needed to address was whether Wellard Feeds Pty Ltd was liable for Mr. Olsen's injuries under the principles of negligence. This required determining whether the defendant had breached a duty of care owed to the plaintiff and if that breach caused the plaintiff's injuries. The court also needed to consider whether any contributory negligence on the part of Mr. Olsen should reduce or negate the defendant's liability.

In its judgment, the court examined the evidence presented regarding the circumstances of the incident, the defendant's safety protocols, and the adequacy of the training provided to Mr. Olsen. The court found that while the defendant had some safety measures in place, they were insufficient and not properly enforced. The court held that the defendant was negligent in not providing adequate safety training and in failing to enforce its safety protocols. However, the court also found that Mr. Olsen had contributed to his own injuries by not following the safety procedures he had been given. The court concluded that the defendant's negligence was the primary cause of the injuries, but that Mr. Olsen's contributory negligence should be taken into account in assessing damages. The court dismissed the application, finding that the defendant was liable for the plaintiff's injuries, but that the extent of damages would be determined in a subsequent hearing.

Orders

Orders of the court

The application be dismissed.

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

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