Richardson v MBP (WA) Pty Ltd
[2020] FCCA 1206
•15 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RICHARDSON v MBP (WA) PTY LTD & ORS | [2020] FCCA 1206 |
| Catchwords: PRACTICE AND PROCEDURE – Application to remove party from proceeding – no cause of action pleaded against that party – party removed from proceeding. |
| Legislation: Fair Work Act 2009 (Cth) s.345(1), 550(1) |
| Cases cited: Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49 |
| Applicant: | HAYDEN RICHARDSON |
| First Respondent: | MBP (WA) PTY LTD AS TRUSTEE FOR THE SUN LAUNDRY SERVICES UNIT TRUST (ACN 104 743 599) TRADING AS SUN LAUNDRY |
| Second Respondent: | PAUL BRADLEY MILES |
| Third Respondent: | ELITE LINEN PTY LTD ACN 626 959 626 |
| File Number: | PEG 328 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 23 April 2020 |
| Date of Last Submission: | 23 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 15 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr McIntyre SC |
| Solicitors for the Applicant: | Saharan Family and Criminal Lawyers |
Counsel for the Respondents: | Mr Jackson |
| Solicitors for the Respondents: | Moray & Agnew Lawyers |
ORDERS
Paragraphs 47 to 50 and 59 to 74 of the further amended points of claim filed on 7 November, 2019 be struck out.
The third named respondent, Elite Linen Pty Ltd ACN 626 959 626, be removed as a respondent in the proceedings.
The application is adjourned to 25 June, 2020 at 9:30am for directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
PEG 328 of 2019
| HAYDEN RICHARDSON |
Applicant
And
| MBP (WA) PTY LTD AS TRUSTEE FOR THE SUN LAUNDRY SERVICES UNIT TRUST (ACN 104 743 599) TRADING AS SUN LAUNDRY |
First Respondent
| PAUL BRADLEY MILES |
Second Respondent
| ELITE LINEN PTY LTD ACN 626 959 626 |
Third Respondent
REASONS FOR JUDGMENT
By its application in a case dated 25 November, 2019 the respondent seeks the following orders:
a)paragraphs 47 to 50 and 59 to 74 of the Amended Points of Claim be struck out in their entirety.
b)the third named respondent, Elite Linen Pty Ltd ACN 626 959 626, be removed as a respondent in the proceedings.
The applicant opposes the application.
On 22 August, 2019 the applicant filed an application alleging that the respondent had contravened certain general protections provided for in the Fair Work Act 2009 (Cth) together with a document entitled “Points of Claim”. The applicant filed amended points of claim on 26 September, 2019. He then filed further amended points of claim on 7 November, 2019.
The applicant’s claim as set out in his further amended points of claim is relatively straightforward. He claims that he was employed by the first respondent in July, 2012 in the first respondent’s commercial laundry business. He claims that the second respondent was a director and controlling mind of the first respondent.
He claims that his employment was covered by the Dry Cleaning and Laundry Industry Award 2010.
It does not seem to be in dispute that until May, 2014 the applicant worked from 5:00am to 1:00pm Monday to Friday. He worked 37.5 hours per week. In May, 2014 his working hours were changed from 5:00am until 1:00pm to 6:00am until 2:00pm Monday to Friday. He continued to work 37.5 hours a week. His claim is that he was not a casual employee (even though his pay slip represented that he was) and in those circumstances he was entitled to certain pay rates, overtime rates, allowances and penalties under the award. His case is, generally speaking, that he was not paid appropriately pursuant to the award.
He also claims that he was entitled to the benefit of being able to request a flexible working arrangement under the award.
Paragraphs 47 to 50 of the further amended points of claim are presently in the following terms:
47. In or around 2014, the first respondent changed the starting and finishing time of the applicant from 5am to 1pm to 6am to 2pm to meet the needs of the employer.
48. The applicant was not given a choice to opt out of, and the applicant did not agree to, that variation of the application of the terms of the award relating to the times for starting and finishing work and the variation did not meet the needs of the applicant as an individual employee.
49. The first respondent did not gain the applicant’s written agreement to enter into the new flexible working arrangement described in paragraph 47 above as required under clause 7 of the award.
50. As a result of this change to the starting and finishing time set out in paragraph 47, the applicant lost the benefit of his shift allowance which had applied prior to the variation to the starting and finishing time referred to in paragraph 47 above provided for under the applicable award and would have continued to apply but for the change referred to in paragraph 47 above.
Clause 7 of the Dry Cleaning and Laundry Industry Award 2010 sets out a standard individual flexibility arrangement provision whereby an employer and an individual employee may agree to vary the application of the terms of the award. Clause 7.1 was, at the relevant time, in the following terms:
7.1 Notwithstanding any other provision of this award, an employer and an individual employee may agree to vary the application of certain terms of this award to meet the genuine individual needs of the employer and the individual employee. The terms the employer and the individual employee may agree to vary the application of are those concerning:
(a)arrangements for when work is performed;
(b)overtime rates;
(c)penalty rates;
(d)allowances; and
(e)leave loading.
The applicant does not allege that he entered into any agreement with his employer to vary the application of any of the terms of the award. On his case as pleaded, his employer unilaterally changed his working hours. There is no suggestion in the points of claim that the employer was not able to do that or that the only way in which the applicant’s working hours could be changed would be through an agreement with the employee pursuant to clause 7 of the award. By implication, his case seems to be that without such an agreement in place, the time at which he commenced his work each day could not be changed by his employer.
The applicant pleads that he worked a morning shift which for the purposes of the award was a shift that commenced before 6:00am. At the time of the change of the applicant’s working hours, Part 5 of the award dealt with hours of work and other related matters. Clause 21.4 provided:
21.4 Rostering
The starting and finishing times of each employee (excluding casual employees) will be fixed by the employer. Those times will not be changed, except in a case of emergency or by agreement with the individual employee, unless seven days’ notice has been given. This includes changes to shift rosters.
The applicant’s case appears to be that before his employer could change the commencement time of his shift, it needed to enter into an individual flexibility agreement pursuant to clause 7 of the award. However clause 21.4 of the award provides that starting and finishing times of each employee’s work will be fixed by the employer. The starting and finishing times could not be changed unless the employee was given seven days’ notice. The applicant does not suggest that he was not given seven days’ notice of the change in his start times.
The respondent argues that these paragraphs should be struck out as they:
a)are frivolous or vexatious;
b)are evasive or ambiguous; or
c)fail to disclose a reasonable cause of action.
In my view, these paragraphs of the pleading fail to disclose a reasonable cause of action. It is entirely unclear for what it is that the applicant is claiming by reason of what he alleges is the employer’s failure to reach agreement with him about the change in the start time to his shift. It was for his employer to determine the start time of his shift: clause 21.4 of the award.
In my view, these paragraphs ought to be struck from the further amended points of claim.
Paragraphs 59 to 74 of the amended points of claim deal with a claim of misrepresentation in contravention of s.345(1) of the Fair Work Act. That section is in the following terms:
345 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
As the respondent submits, there are three elements that need to be pleaded and proved if a claim for a contravention of s.345 of the Fair Work Act is going to succeed. Those elements are:
a)a false or misleading representation;
b)that was made knowingly or recklessly; and
c)which was about workplace rights or the exercise of a workplace right.
The applicant pleads that there were two occasions upon which representations were made that are now said to contravene s.345 of the Fair Work Act. Paragraphs 59 – 66 of the further amended points of claim deals with the first occasion of misrepresentation. Those paragraphs are in the following terms:
59. On or about June 2018, the second respondent made representations in a face to face meeting with the applicant and other employees that the applicant would from on or about June 2018 be offered employment by another employer known as "Elite Linen".
Particular of representations
(i) that the laundry business (“Sun Laundry"), that employed the applicant and others would be relocating to another building and it would be another business called "Elite Linen";
(ii) there would be a phasing in of new uniforms as the second respondent wanted a clean look and to move away from the old business, "Sun Laundry";
60. Consistently, with those representations the following representations by conduct occurred:
a. the applicant and other employees were instructed to purchase a new work uniform to fit in with the new business name;
b. on or around September 2018, the business that employed the applicant relocated to a new building situated at 28 Ewing Street. Bentley, WA 6102 ("the new office");
c. the applicant had supplied to him by or on behalf of the second respondent, acting as agent of the first respondent. a white polo shirt with the name' Elite Linen', which the applicant purchased;
d. the applicant commenced working at the new office on or about December 2018, employed by what he understood to be a new business, until his employment was terminated on or about 29 April 2019 and the second respondent, in his capacity as Manager and agent of the first and third respondent, saw the applicant in the new uniform, on number of occasions undertaking work at the new office and made no comment to the applicant at any time inconsistent with the representations in paragraph 59 above:
61. The applicant relied upon the representations in paragraph 59 e4 above and the representations by conduct at paragraph 60 above that the applicant was from on or about June 2018 employed by a business named Elite Linen, which mislead him into incorrectly nominating Elite Linen as his employer, after termination of his employment in the unfair dismissal proceedings he commenced in the Fair Work Commission. The representations at paragraph 59 above were false because they represented that a company named "Elite Linen" was his employer, when in fact his employer was MBP (WA) Pty Ltd as trustee for the Sun Laundry Services Unit Trust (ACN 104 743 599).
62. By making an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s 394 and in accordance with Part 3-2 of the Fair Work Act 2009 on 2 May 2019 at 1:20pm AWST Reference number 73077 against Elite Linen the applicant exercised his workplace right, specified in s 341(1)(b) of the Act to initiate proceedings under a workplace law, being the workplace right of commencing proceedings leading to a hearing by the Fair Work Commission, within the meaning of s 341(2)(a) of the FW Act.
63. The representations at paragraphs 59 and 60 above were about a workplace right and affected the applicant's right to exercise his work place right, namely his right to initiate Fair Work Commission proceedings against his employer, contrary to s 345(1)(b) because the representations caused him to make the application for unfair dismissal against a company as respondent namely Elite Linen, which was not his employer, thus affecting the applicant’s right to exercise his workplace right to commence proceedings against the company which was his employer, namely MBP (WA) Pty Ltd as trustee for the Sun Laundry Services Unit Trust (ACN 104 743 599).
64. On or around 27 July 2019, in unfair dismissal proceedings, the second respondent, acting as agent of the first respondent, advised the Fair Work Commission that the entity that continued to employ the applicant was "MBP (WA) Pty Ltd as trustee for the Sun Laundry Services Unit Trust (ACN:104 743 599)".
65. When the above representations were made the second respondent was a director of the first and third respondent.
66. By reason of the matters set out in paragraphs 59-66 all 3 respondents contravened section 345 (1)(b) of the Act by engaging in the conduct set out in those paragraphs.
These paragraphs of the further amended points of claim must be struck out. There are a number of reasons why.
First, the representations upon which the allegation of a contravention relies are not representations of fact. As I put to senior counsel for the applicant in the course of submissions, what was pleaded were representations as to a future matter namely that the applicant would be offered employment by another employer. Insofar as that is a representation of fact, it is a representation of the intention of the maker of the statement or alternatively representation as to an opinion held by the maker of the statement. To prove that the representation was false it must be pleaded and proved that the maker of the statement either did not hold the relevant intention or did not have reasonable grounds for holding the expressed belief: Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49. None of those matters are pleaded here. Senior counsel for the applicant suggested that falsity of the representations was made out by what was pleaded later in the document namely that the employment of the applicant by the third respondent did not apparently come to pass. But that a future prediction does not come to pass does not mean that the making of the prediction was a misrepresentation.
Second, insofar as paragraph 60 alleges further representations by conduct, the matters particularised in subparagraphs (a) to (d) are not representations. They are pleadings of events. But they do not demonstrate that the representation pleaded – that the applicant would be offered employment with the third respondent applicant – came to pass. The representation upon which the applicant relies is not that he was employed by the third respondent but that he would be offered employment with the third respondent. It is impossible in those circumstances to see what the allegations in paragraph 60, as particularised, add to his case.
Third, despite the contentious pleading of the applicant, the representations were not about a workplace right or the exercise of a workplace right by the applicant. At best, they were representations about the identity of his employer at some indeterminate point in the future when he was offered employment with the third respondent. The identity of his employer is not a workplace right nor is it about the exercise or the effect of the exercise of a workplace right. It is critical that the representation be about a workplace right or about the exercise or the effect of the exercise of a workplace right to engage s.345(1): Edgar v Norton Rose Fulbright Australia Services [2019] FCCA 1869 at [56].
The significance of this matter can be appreciated when one considers paragraph 63 of the further amended points of claim where the applicant pleads: “The representations at paragraphs 59 and 60 above were about a workplace right and affected the applicant’s rights to exercise his workplace right, namely his right to initiate Fair Work Commission proceedings…” Section 345(1)(a) provides that the false or misleading representation must be about the effect of the exercise of a workplace right by another person. The applicant does not plead that the representation (if there be one) was about the effect of the exercise of his of his workplace right but rather that it affected the exercise of his workplace right. They are two different matters. The former engages s.345(1) of the Fair Work Act, the latter does not.
Fourth, the applicant does not plead that the second respondent made representations knowing that they were false or recklessly not caring as to whether they were true or false. That is an essential element of a contravention of section 345. There is no pleading as to the second respondent state of mind whatsoever.
The second alleged contravention of s.345(1) is pleaded in paragraphs 67 to 74 of further amended points of claim. Those paragraphs plead the following:
67. Between July 2013 - 29 April 2019, first respondent provided pay slips to the applicant that described the name of applicant's employer as, "Sun Laundry Services Pty Ltd".
68. On or about 26 June 2019, first and second respondent's lawyer advised the applicant's lawyer in writing that the entity that employed the applicant was a company called 'Sun Laundry Services Pty Ltd (ACN 104 743 599) (Sun Laundry).'
69. Later in the Fair Work Commission ("FWC") hearing, in or around July 2019, the second respondent advised that correct name of the applicant's employer was, "MBP (WA) Pty Ltd as trustee for the Sun Laundry Services Unit Trust (ACN 104 743 599) trading as Sun Laundry.
70. The applicant relied upon the representations in paragraphs 67-68 above that the applicant was employed by a business named 'Sun Laundry Services Pty Ltd (ACN 104 743 599) (Sun Laundry)’ which mislead him into seeking the following order pursuant to section 586 of the act in his application in the FWC proceedings in or around July 2019:
"applicant's application be amended to reflect the correct name of the Employer as "Sun Laundry Services Pty Ltd ACN 104 743 599"
71. By making an application to amend the correct entity of the employer in FWC proceedings, the applicant exercised his workplace right, specified ins 341(1)(b) of the Act to participate in the FWC proceedings under a workplace law, being proceedings leading to a hearing by the Fair Work Commission, within the meaning of s 341(2)(a) of the Act.
72. The representations at paragraphs 67-68 above affected the applicant's right to exercise his work place right, namely his right to participate in the FWC proceedings against his employer, contrary to s 345(1)(b) of the Act.
73. When the above representations were made second respondent was a director of the first respondent.
74. By reason of the matters set out in paragraphs 67-73, both respondents contravened section 345 (1)(b) of the Act by engaging in the conduct set out in those paragraphs.
It is tolerably clear that the representations about which the applicant makes complaint are those which are pleaded in paragraphs 67 and 68 of the further amended points of claim. The representation pleaded in paragraph 67 is that the payslips given to the applicant carried a representation as to the identity of the employer. The representation in paragraph 68 is that the first and second respondent’s solicitor made a representation about the identity of the employer. It is said that those representations were false because subsequently in Fair Work Commission proceedings it became apparent that the first respondent was the applicant’s employer.
However for the reasons I have set out above these representations were not representations about a workplace right or about the exercise or the effect of the exercise of a workplace right. They are not apt to engage s.345(1) of the Fair Work Act. Moreover, there is no pleading of the relevant state of mind that is necessary to engage s.345(1).
These paragraphs too should be struck out. They do not plead a reasonable cause of action.
The respondents also seek the removal of the third respondent who has been named by the applicant in these proceedings. Rule 11.04 of the Federal Circuit Court Rules 2001 (Cth) provides that a party to a proceeding may apply to the Court to be removed as a party to the proceeding. The third respondent has applied for such an order. That such an order should be made is clear.
There is no identification in the further amended points of claim about how the third respondent is relevant to these proceedings at all. Whilst the third respondent is named in the pleading there is no allegation that would, or could lead to the conclusion that the third respondent was involved in the contraventions alleged against the first respondent. All there is a bald pleading that the third respondent “contravened s.550(1) of the Act and the second respondent was involved in the contravention is the controlling mind of the third respondent”. Leaving aside the obvious difficulty that s.550(1) of the Fair Work Act is not capable of contravention, but rather is an accessorial liability provision, the matters identified by the Federal Court in cases such as Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 have not been the subject of any pleading here so as to make out an arguable case for accessorial liability against the third respondent.
The third respondent should be removed from the proceedings.
The respondents have demonstrated that paragraphs 47 to 50 and 59 to 74 of the Amended Points of Claim ought be struck out. It is appropriate to order that they be struck out. There was no suggestion from the applicant that in the event those paragraphs were struck out, there should be leave to replead.
It is also appropriate that the third named respondent, Elite Linen Pty Ltd ACN 626 959 626, be removed as a respondent in the proceedings. No cause of action has been pleaded against it and no proper case of accessorial liability has been pleaded against it.
Accordingly, I make the orders set out at the commencement of these reasons.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 15 May, 2020.
Associate:
Date: 15 May 2020
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