ROETTGER v FITZSIMMONS - [2016] FCCA 2965

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROETTGER v FITZSIMMONS

[2016] FCCA 2965

Catchwords:
INDUSTRIAL LAW – Application pursuant to s.548 of the Fair Work Act 2009 to be paid entitlements under the Building and Construction General On-Site Award 2010 (the Award) – whether Applicant was employee or independent contractor – held Applicant an employee – held Respondent covered by the Award – held Applicant employed as a Construction Worker Level 3 under the Award – order made for the payment of underpayments.

Legislation:

Fair Work Act 2009 (Cth) ss.45, 48, 86, 90, 117, 123(1)(c)

Cases cited:

Fair Work Ombudsman v Grouped Property ServicesPty Ltd [2016] FCA 1034
Reed v Blue Line Cruises Ltd (1996) 73 IR 420

Applicant:

MARVIN ROETTGER

Respondent:

CARL FITZSIMMONS

File Number:

MLG 594 of 2016

Judgment of:

Judge Jones

Hearing date:

21 October 2016

Date of Last Submission:

21 October 2016

Delivered at:

Melbourne

Delivered on:

21 October 2016

REPRESENTATION

Counsel for the Applicant:

Self-represented

Counsel for the Respondent:

Self-represented

DECLARATION

The Applicant was engaged by the Respondent from 17 November 2015 to 8 December 2015 as an employee;
The Respondent contravened s.45 of the Fair Work Act 2009 by failing to pay the Applicant:
(a)the rates of pay applicable to the classification Construction Worker Level 3, Schedule B to the Building and Construction General On-Site Award 2010 (the Award);
(b)allowances in accordance with cl.20.1 of the Award; and
(c)allowances in accordance with cl.21.2 of the Award.

ORDERS

The Respondent pay the Applicant the amount of $1,673.00 within

14 days of these orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 594 of 2016

MARVIN ROETTGER

Applicant

And

CARL FITZSIMMONS

Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an application filed by the Applicant on

23 March 2016 pursuant to s.548 of the Fair Work Act 2009 (“the Act”). The Applicant filed a Form 5 – Small Claim (“Form 5”) under the Act. The Respondent filed his response together with an affidavit on

17 October 2016.
The Applicant claims that he was employed from 17 November 2015 to 8 December 2015 on a full-time basis as a bricklayer under the Building and Construction General On-Site Award 2010 (“the Award”). He claims that he should have been paid as a Construction Worker Level 3, classification B.2.3 of schedule B to the Award.

The Respondent argues that the Applicant was engaged as an independent contractor for the period 17 November 2015 to

8 December 2015 and that the Applicant’s claim should be dismissed.
There are three issues to be decided:
a)whether the Applicant was an employee or an independent contractor;
b)if the Applicant was an employee, whether the Respondent was covered by the Award; and
c)if the Respondent was covered by the Award, whether the Applicant’s classification at all relevant times was as a Construction Worker Level 3 under the Award;
d)whether the Applicant was entitled to be paid both annual leave and an amount in lieu of notice in accordance with s.90 and s.117 of the…

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.

Keep reading for free

Create a free CaseChat account to read ROETTGER v FITZSIMMONS and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 2965
Decision Date: 21 October 2016

CaseChat Overview and Summary

In ROETTGER v FITZSIMMONS, the Supreme Court of Queensland considered a dispute concerning the enforceability of a deed of release. The plaintiff, Roettger, sought to set aside a deed of release executed in favour of the defendant, Fitzsimmons, alleging it was procured by misleading and deceptive conduct. The core of the dispute revolved around whether the deed, which purported to extinguish all claims between the parties, was valid and binding.

The primary legal issue before the Court was whether the plaintiff had established a case for setting aside the deed of release on the grounds of misleading and deceptive conduct, in contravention of the Australian Consumer Law. This required the Court to determine if the defendant had made representations that were false or misleading, and if these representations induced the plaintiff to enter into the deed. The Court also had to consider the effect of the deed itself and whether it effectively precluded the claims now being advanced by the plaintiff.

Judge Jones found that the plaintiff had failed to establish that the representations made by the defendant were misleading or deceptive, or that they induced the plaintiff to execute the deed. The Court applied the principles of contract law and the Australian Consumer Law, emphasising the need for clear evidence of misrepresentation and causation. The terms of the deed of release were found to be clear and unambiguous, and the plaintiff had not discharged the onus of proving the necessary elements to vitiate the deed. Consequently, the Court held that the deed of release was valid and enforceable.

Orders