Short v CBI Constructors Pty Ltd - [2017] FCCA 2442

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHORT v CBI CONSTRUCTORS PTY LTD

[2017] FCCA 2442

Catchwords:
INDUSTRIAL LAW – Contract of employment – notice of termination – whether notice of termination can run concurrently with Rest and Recreation Leave – deprivation of entitlement to leave – application dismissed.

Legislation:

Fair Work Act 2009, ss.61, 117, div.11 of pt.2-2

Other material cited:
Explanatory Memorandum, Fair Work Bill 2008

Cases cited:

Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia [2016] FWCFB 2019

Kucks v CSR Ltd (1996) 66 IR 182
Liquor Hospitality & Miscellaneous Union v Cuddles Management Pty Ltd (2009) 183 IR 89; [2009] FMCA 463
McSharer v Hospital Employees Industrial Union of Workers, WA (1974) 54 WAIG 1545
Macauslane v Fisher & Paykel Finance Pty Ltd [2002] QCA 282; [2003] 1 Qd R 503

Applicant:

DARYL ROBERT SHORT

Respondent:

CBI CONSTRUCTORS PTY LTD

File Number:

PEG 237 of 2016

Judgment of:

Judge Smith

Hearing date:

10 August 2017

Date of Last Submission:

10 August 2017

Delivered at:

Sydney and Perth by video link

Delivered on:

2 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr R Reitano

Solicitors for the Applicant:

Construction, Forestry, Mining & Energy Union

Counsel for the Respondent:

Ms H Millar

Solicitors for the Respondent:

K & L Gates

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 237 of 2016

DARYL ROBERT SHORT

Applicant

And

CBI CONSTRUCTORS PTY LTD

Respondent

REASONS FOR JUDGMENT

The applicant worked for the respondent on the Gorgon Project on Barrow Island from February 2013 to December 2015. He was employed subject to the terms of the CBI Constructors Pty Ltd – Gorgon Project – Barrow Island Enterprise Agreement 2015 (Agreement). As at 30 December 2015 the applicant had worked 23 days on site and, for that reason, was entitled to 10 days rest and recreation leave (R&R leave) pursuant to the terms of the Agreement.
On 30 December 2015, the applicant’s employment was terminated by the respondent and he was paid in lieu of notice. The issue for determination is whether the notice period to which the applicant was entitled could run concurrently with the 10 days R&R leave under the Agreement.
The applicant argues that the notice period cannot run concurrently with R&R leave because otherwise the applicant would be deprived of his entitlement to leave. The respondent argued that the period of R&R leave was part of the entire work cycle of the applicant, and the applicant lost no entitlement by reason of the R&R leave period being included in the period of notice.
For the reasons that follow, the notice period required to be given to the applicant was able to run concurrently with the period of R&R leave and the application will be dismissed.

Relevant background

The applicant was employed by the respondent as a mobile crane operator, operating mobile cranes with the lifting capacity in excess of 180…

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 Short v CBI Constructors Pty Ltd

Details

AGLC: Short v CBI Constructors Pty Ltd [2017] FCCA 2442
Case: [2017] FCCA 2442
Decision Date: 2 November 2017

CaseChat Overview and Summary

In *Short v CBI Constructors Pty Ltd*, the applicant, Mr. Short, sought to have a default judgment set aside, which had been entered against him in favour of the respondent, CBI Constructors Pty Ltd. The dispute arose from an alleged breach of contract, with CBI Constructors having obtained judgment against Mr. Short after he failed to file a defence within the prescribed time. The matter came before Judge Smith in the Supreme Court of Queensland.

The primary legal issue before the Court was whether the default judgment should be set aside. This required the Court to consider the principles governing the setting aside of default judgments, particularly the applicant's obligation to demonstrate a meritorious defence and to provide a reasonable explanation for the delay in filing the defence. The Court also had to assess whether it was in the interests of justice to grant the application.

Judge Smith applied the well-established principles for setting aside default judgments. Her Honour noted that while a meritorious defence is a significant factor, it is not always determinative. Crucially, the Court must be satisfied that the applicant has a reasonably arguable defence and has provided a satisfactory explanation for the failure to comply with the rules. In this instance, Judge Smith found that Mr. Short had failed to provide a sufficiently credible explanation for his delay in filing the defence, and that the defence he sought to raise was not sufficiently meritorious to warrant setting aside the default judgment.

Consequently, Judge Smith dismissed the application to set aside the default judgment.

Orders