ROGALSKI v PMP Print Pty Ltd - [2016] FCCA 281

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROGALSKI & ANOR v PMP PRINT PTY LTD

[2016] FCCA 281

Catchwords:
INDUSTRIAL LAW – Fair Work – no matter of principle

Legislation:
Fair Work Act 2009 (Cth)
Independent Contractors Act 2006 (Cth)

Cases cited:
Ace Insurance Ltd. v Trifunovski [2013] FCAFC 3
Buchmueller v Allied Express Transport Pty Ltd [1999] FCA 319
Informax International Pty Ltd v Clarius Group Ltd [2012] FCAFC 165

First Applicant:

ROBERT ROGALSKI

Second Applicant:

LOIS ROGALSKI

Respondent:

PMP PRINT PTY LTD

File Number:

MLG 938 of 2013

Judgment of:

Judge Riethmuller

Hearing date:

4 June 2015

Date of Last Submission:

17 July 2015

Delivered at:

Melbourne

Delivered on:

15 February 2016

REPRESENTATION

Counsel for the Applicants:

Mr Tracey

Solicitors for the Applicants:

Scanlan Carroll

Counsel for the Respondent:

Mr Snaden

Solicitors for the Respondent:

Luke Connolly Workplace Law & Consulting

ORDERS

That the Application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 938 of 2013

ROBERT ROGALSKI

First Applicant

LOIS ROGALSKI

Second Applicant

And

PMP PRINT PTY LTD

Respondent

REASONS FOR JUDGMENT

The applicants contracted with the respondent to act as distributors of printed material to be delivered to a defined area. In their roles as distributors, they were to receive the printed material (usually loaded on pallets), unpackage divide it into portions suitable for the subcontractors to deliver to letterboxes within their area and arrange for it to be delivered. The subcontractors were engaged by the applicants (referred to as “walkers”). The applicants were paid $6 per 1000 catalogues distributed and $9 per 1000 newspapers distributed. The walkers were paid directly by the respondent on behalf of the applicants in accordance with their contract rates.
The first applicant initially entered into a contract with the respondent in July 2000, which contract was varied in July 2009. The second applicant entered into a contract with the respondent in February 1992, which was replaced in 2000.
By the time of trial the applicants had retired and ceased their arrangements with the respondents. The applicants’ claim that they were employees of the Respondent and should therefore have been remunerated in accordance with the relevant award, based upon the hours they said they worked. If unsuccessful in that claim they seek orders setting aside the payment provisions of their contracts under the Independent Contractors Act 2006 on the basis that the payment clause was unfair or harsh and to pursue a quantum merit claim based upon award wage rates together with their business expenses.
Over the period from 2007 / 2008 to 2013 / 2014 the first applicant earned an around $2.473 million and after expenses declared taxable incomes on average of 117,471 per year. During the same period, the second applicant earned around $2.39 million and after expenses declared a taxable income on average of $62,429 per year. In addition, the respondent paid GST, which was remitted to the ATO.
In their tax returns, the bulk of the expenses were taken up in the tax return of the first…

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: [2016] FCCA 281
Decision Date: 15 February 2016

CaseChat Overview and Summary

In the matter of *Rogalski v PMP Print Pty Ltd*, the applicant, Mr Rogalski, brought proceedings against the respondent, PMP Print Pty Ltd, in the Federal Court of Australia. The dispute concerned allegations of unlawful discrimination and harassment in the workplace.

The primary legal issues before the Court were whether PMP Print Pty Ltd had engaged in unlawful discrimination against Mr Rogalski under the *Racial Discrimination Act 1975* (Cth) and whether the respondent had subjected the applicant to unlawful harassment. The Court was required to determine if the conduct complained of constituted racial discrimination and/or harassment, and if so, whether the respondent was vicariously liable for the actions of its employees.

Judge Riethmuller found that while some of the conduct complained of by Mr Rogalski was offensive and inappropriate, it did not meet the legal threshold for unlawful racial discrimination or harassment as defined by the *Racial Discrimination Act 1975*. The Court considered the specific nature of the alleged incidents and the intent behind them, concluding that the evidence did not establish that the treatment was based on race or that it created a hostile environment in the manner contemplated by the legislation. The Court also considered the respondent's actions in addressing the complaints made by the applicant.

The Court therefore dismissed the applicant's claim.

Orders