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Skene v WorkPac Pty Ltd

Skene v WorkPac Pty Ltd

Case [2018] FCCA 3628 7 December 2018

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Penalty

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Statutory Construction

Employment Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SKENE v WORKPAC PTY LTD

[2018] FCCA 3628

Catchwords:
INDUSTRIAL LAW – Mischaracterisation of employee as a casual rather than a permanent employee – assessment of compensation – whether compensation payable pursuant to Workplace Agreement or pursuant to s.87 of the Fair Work Act – payment to be made pursuant to provisions of Workplace Agreement – low range penalty based on particular circumstances of case.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 15, 44(1), 87, 90, 545, 546

Fair Work Transitional Provisions and Consequential Amendments Act 2009 (Cth), sch 16 item 2(2)
Federal Court of Australia Act 1976 (Cth), s.51A

Cases cited:

Centennial Northern Mining Services Pty Ltd v CFMEU (2015) 231 FCR 298
Comcare v Post Logistics Australasia Pty Limited (2012) 207 FCR 178
Nette v Howarth [1935] 53 CLR 55

Project Blue Sky v ABA (1998) 194 CLR 355

Workpac Pty Ltd v Skene [2018] FCAFC 131

Applicant:

PAUL ALEXANDER SKENE

Respondent:

WORKPAC PTY LTD

File Number:

BRG 457 of 2014

Judgment of:

Judge Egan

Hearing date:

6 December 2018

Date of Last Submission:

6 December 2018

Delivered at:

Brisbane

Delivered on:

7 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr Crawshaw SC with Mr Reed

Solicitors for the Applicant:

Slater & Gordon Lawyers

Counsel for the Respondent:

Mr Chin

Solicitors for the Respondent:

Ashurst Australia

THE COURT DECLARES THAT:

The respondent contravened the provisions of s.44(1) of the Fair Work Act 2009 (Cth) and item 2(2) of Schedule 16 to Fair Work Transitional Provisions and Consequential Amendments Act 2009 (Cth) by failing to pay to the applicant his full annual leave entitlements pursuant to clause 19.1.1 of the Workpac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007.

AND IT IS ORDERED THAT:

That the respondent pay to the applicant by way of compensation the sum of $5,954.48 within twenty-eight (28) days of the making of this order.
That the respondent pay a pecuniary penalty pursuant to s. 546(1) of the Fair Work Act for its contravention as set out in the declaration above fixed in the amount of $1,650.00.
That the amount of the pecuniary penalty be paid to the applicant pursuant to s.546(3) of the Fair Work Act2009 (Cth).
That the respondent pay the applicant’s costs of and incidental to this application as agreed or as assessed pursuant to the applicable Federal Court Scale of Costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 457 of 2014

PAUL ALEXANDERS SKENE

Applicant

And

WORKPAC PTY LTD

Respondent

REASONS FOR JUDGMENT

This matter was originally heard as a trial in a differently constituted Federal Circuit Court at Brisbane. Proceedings had been commenced by the applicant in 2014. The applicant sought, as final relief, the following orders in the Amended Statement of Claim filed on his behalf:
a)an order pursuant to s.546 of the Fair Work Act 2009 (Cth) (“the Act”) that the respondent pay a pecuniary penalty for its contravention of s.44(1) of the Act;
b)an order pursuant to s.546 of…

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 Skene v WorkPac Pty Ltd

Details

AGLC: Skene v WorkPac Pty Ltd [2018] FCCA 3628
Case: [2018] FCCA 3628
Decision Date: 7 December 2018

CaseChat Overview and Summary

The Federal Court of Australia considered a dispute between Ms. Skene and WorkPac Pty Ltd concerning the characterisation of Ms. Skene's employment. Ms. Skene had been engaged by WorkPac as a casual employee, but she contended that her employment was, in reality, permanent. This mischaracterisation, she argued, had implications for her entitlement to compensation.

The central legal issue before the court was whether Ms. Skene was entitled to compensation, and if so, whether that compensation should be assessed under the terms of a Workplace Agreement or pursuant to section 87 of the *Fair Work Act 2009* (Cth). The court was required to determine the correct basis for calculating any compensation payable to Ms. Skene, given the alleged misclassification of her employment status.

Justice Egan found that the compensation payable to Ms. Skene was to be determined in accordance with the provisions of the relevant Workplace Agreement. The court applied principles of contract law and industrial law to assess the nature of the employment relationship and the entitlements arising from it. A low-range penalty was imposed on WorkPac, reflecting the specific circumstances of the case.

Orders