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Skene v Workpac Pty Ltd

Skene v Workpac Pty Ltd

Case [2016] FCCA 3035 24 November 2016

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SKENE v WORKPAC PTY LTD

[2016] FCCA 3035

Catchwords:
INDUSTRIAL LAW – Whether worker was casual employee or other than casual – entitlement to annual leave pursuant to enterprise agreement – entitlement to annual leave pursuant to Fair Work Act 2009.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 86, 87, 90

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), s.45

Cases cited:
Director of Fair Work Building Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Hamzy v Tricon International Restaurants (2001) 115 FCR 79
MacMahon Mining Services Pty Ltd v Williams [2010] FCA 1321
Reed v Blue Line Cruises Ltd (1996) 73 IR 420
Re Metal, Engineering & Associated Industries Award (2000) 110 IR 247
Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434
Wills v Nigaloo Resorts Pty Ltd [2011] FMCA 433
Williams v MacMahon Mining Services Pty Ltd [2009] FMCA 511

Applicant:

PAUL ALEXANDER SKENE

Respondent:

WORKPAC PTY LTD

File Number:

BRG 457 of 2014

Judgment of:

Judge Jarrett

Hearing date:

14 July 2015

Date of Last Submission:

14 July 2015

Delivered at:

Brisbane

Delivered on:

24 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr Reed

Solicitors for the Applicant:

Slater & Gordon

Counsel for the Respondent:

Mr Wood SC with Mr Haddrick

Solicitors for the Respondent:

DLA Piper

ORDERS

The parties agree short minutes of order reflecting the amount of compensation to which the applicant is entitled and which the respondent shall be ordered to pay according to these reasons;
The application be adjourned to 12 December 2016 at 9:30am for further directions concerning submissions relating to the imposition of a pecuniary penalty, if any, upon the respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 457 of 2014

PAUL ALEXANDER SKENE

Applicant

And

WORKPAC PTY LTD

Respondent

REASONS FOR JUDGMENT

Paul Skene worked for the respondent as a dump truck operator from 17 April, 2010 to 17 July, 2010 and then again from 20 July, 2010 to 17 April, 2012 at coal mining operations carried on in central Queensland.
In these proceedings he claims that he was a permanent full-time employee of the respondent and was entitled to annual leave and consequential entitlements, or payment in lieu of annual leave upon his employment coming to an end. The respondent is a labour hire company that supplied labour to various mining companies. It contends that Mr Skene was a casual employee and not entitled to annual leave and other entitlements he claims or payment in lieu of annual leave upon his employment coming to an end.
In these proceedings Mr Skene seeks:
a)the imposition of pecuniary penalties for contravention of:
i)s.44 of the Fair Work Act 2009 (Cth); and
ii)s.45 item 2 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth);
b)compensation for the respondent’s contraventions of those Acts in the form 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 [2016] FCCA 3035
Case: [2016] FCCA 3035
Decision Date: 24 November 2016

CaseChat Overview and Summary

Skene v Workpac Pty Ltd concerned a dispute between Ms Skene, a labour-hire employee, and Workpac Pty Ltd, the labour-hire company that engaged her. Ms Skene had been engaged by Workpac to perform work for a client, Santos, from July 2010 until May 2012. She claimed that she was a permanent employee of Workpac and therefore entitled to paid leave entitlements under the *Fair Work Act 2009* (Cth) (FW Act). Workpac contended that Ms Skene was a casual employee and thus not entitled to such leave. The Federal Court of Australia was required to determine the true nature of Ms Skene's employment relationship with Workpac.

The central legal issue before the Federal Court was whether Ms Skene was a casual employee or a permanent employee for the purposes of the FW Act. This determination hinged on an analysis of the terms of her engagement and the reality of the working relationship, particularly in light of the definition of "casual employee" in section 12 of the FW Act, which refers to an employee engaged on the basis that the employer makes no promise or commitment to continue employment indefinitely and the employment is terminated upon completion of the task for which the employee is engaged or at the employer's discretion.

The Court found that despite Workpac characterising Ms Skene as a casual employee, the terms of her engagement and the reality of her employment indicated a permanent employment relationship. The Court noted that Ms Skene had a regular pattern of work, was rostered in advance, and was not given the unfettered right to refuse work. These factors, taken together, demonstrated that Workpac had made an implicit commitment to continue her employment indefinitely, and that her employment was not solely dependent on the completion of a specific task or the employer's discretion. Consequently, the Court held that Ms Skene was not a casual employee and was therefore entitled to the leave entitlements claimed.

Orders