Olsen v Wellard Feeds Pty Ltd (No.2) - [2008] FMCA 447

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OLSEN v WELLARD FEEDS PTY LTD (No.2)

[2008] FMCA 447

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

COSTS – Meaning of without reasonable cause – whether proceedings issued without reasonable cause.

Federal Magistrates Act, 1999 (Cth) s.79(3)
Federal Magistrates Court Rules 2001 (Cth) r.13.10
Workplace Relations Act, 1996 (Cth) ss.719(6), 720, 722, 824(1), 824(3)

AFMEPKIU v Nestle Australia Ltd [2005] FCA 717
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 Limited [2004] AIRC 346
Geneff v Peterson (1986) 19 IR 40
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
Matthews v Australian Postal Corporation [2007] FMCA 1174
Olsen v Wellard Feeds Pty Ltd [2007] FMCA 1885
Olsen v Wellard Feeds Pty Ltd [2008] FMCA 320
R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470
Spotless Services Australia Ltd v Marsh [2004] FCAFC 155
Standish v University of Tasmania (1989) 28 IR 129
Thompson v Hodder (1989) 29 IR 339

Applicant:

CHELSEA OLSEN

Respondent:

WELLARD FEEDS PTY LTD
(ACN 009248195)

File Number:

PEG 170 of 2007

Judgment of:

Lucev FM

Hearing date:

26 March 2008

Date of Last Submission:

26 March 2008

Delivered at:

Perth

Delivered on:

11 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr McCann

Solicitors for the Applicant:

Sparke Hellmore

Counsel for the Respondent:

Mr Jackson

Solicitors for the Respondent:

DLA Phillips Fox

ORDER

The Applicant pay the Respondent’s costs of these proceedings, except as otherwise ordered by the Court on 7 November 2007, to be agreed, and if not agreed, to be taxed by a Registrar of this Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 170 of 2007

CHELSEA OLSEN

Applicant

And

WELLARD FEEDS PTY LTD (ACN 009248195)

Respondent

REASONS FOR JUDGMENT

Application

By an application made on 22 August 2007 the Applicant sought:
a)a declaration that the Respondent breached clause 29.3.8 of the Award[1] by not paying unused accrued sick leave to Ronald West, an employee of the Respondent, at the date of termination of his employment with the Respondent;
b)an order under s.720 of the Workplace Relations Act, 1996 (Cth)[2] for the Respondent to pay to Mr 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 Mr West’s employment; and
c)the imposition of a penalty against the Respondent under s.719(6) of the WR Act.
[1] The Award being the Milling Industry – General – Award.
[2] “WR Act”.
The issues that arose in respect of the application were as follows:
a)whether the Respondent was bound by the Award; and
b)if the Respondent was bound by the Award, whether the Award applied to Mr West’s employment.
In Olsen v Wellard Feeds Pty Ltd

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.

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Details

Case: [2008] FMCA 447
Decision Date: 11 April 2008

CaseChat Overview and Summary

The case Olsen v Wellard Feeds Pty Ltd (No.2) involved an employee, Olsen, who alleged that his employer, Wellard Feeds Pty Ltd, breached an award in relation to his employment as a Mill Manager. The dispute centred around whether the award applied to Olsen's role and, if so, whether the employer had breached it. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was tasked with determining two primary legal issues. Firstly, whether the relevant award applied to Olsen's employment as a Mill Manager. Secondly, if the award did apply, whether there had been a breach of that award by the employer. Additionally, the court needed to consider the issue of costs, specifically whether the proceedings were issued without reasonable cause.

In its reasoning, the court found that the award did indeed apply to Olsen's employment. The court detailed the provisions of the award and compared them with the terms of Olsen's employment, concluding that the award's provisions were applicable. Regarding the alleged breach, the court found that there had been no breach of the award by the employer. The court then considered the issue of costs, determining that the proceedings were not issued without reasonable cause, thus rejecting the employer's claim for costs. The court's decision was based on a detailed analysis of the award provisions and the factual circumstances of Olsen's employment.

The final orders of the court were that the award applied to Olsen's employment, there had been no breach of the award, and the employer was not entitled to costs as the proceedings were not issued without reasonable cause.

Orders