Smith v Quasar Constructions Pty Ltd - [2015] FCCA 557

FEDERAL CIRCUIT COURT OF AUSTRALIA

SMITH v QUASAR CONSTRUCTIONS PTY LTD & ANOR

[2015] FCCA 557

Catchwords:
INDUSTRIAL LAW – Termination – non payment for accrued leave – purported surrender of leave entitlements – statutory entitlements cannot be contracted out – accuracy of leave records – estoppel – failure to keep proper records after purported surrender of entitlements.

Legislation:

Annual Holidays Act 1944 (NSW), ss.2, 3, 4, 4B, 9

Annual Holidays Amendment Act 1997 (NSW)

Evidence Act 1995 (Cth), s.140(1)

Fair Work Act 2009 (Cth), ss.14, 16, 22, 44, 61, 87, 88, 90, 91, 324, 535, 545, 546, 547, 550

Fair Work Regulations 2009 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), s.2
Industrial Relations Act 1996 (NSW), ss.101, 102
Industrial Relations (General) Regulations 2001 (NSW)
Workplace Relations Act 1996 (Cth), ss.229, 232, 236, 836
Workplace Relations Amendment (Work Choices) Act 2005 (Cth), s.2
Workplace Relations Regulations 2006 (Cth)

Australian Timber Workers Union v Monaro Sawmills Pty Ltd [1980] FCA 43; (1980) 42 FLR 369
LHMU v Arnotts Biscuits Ltd [2010] FCA 770; (2010) 188 FCR 221
McLennan v Surveillance Australia Pty Ltd (2005) 142 FCR 105; [2005] FCAFC 46

Metropolitan Health Service Board v Australian Nursing Federation (2000) 99 FCR 95; [2000] FCA 784
Ray v Radano (1967) AR (NSW) 471
Regional Express Holdings Ltd v Clarke (2007) 165 IR 251; [2007] FCA 957
Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250; [2002] FCA 1406

Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4

Applicant:

LUKE SMITH

First Respondent:

QUASAR CONSTRUCTIONS PTY LTD

Second Respondent:

JAMES CRAWFORD

File Number:

SYG 2868 of 2013

Judgment of:

Judge Driver

Hearing dates:

17 February, 12 March, 29 April 2015

Delivered at:

Sydney

Delivered on:

28 August 2015

REPRESENTATION

Solicitors for the Applicant:

Mr A Barwick of Hugh & Associates Lawyers

Counsel for the Respondents:

Mr Moir

Solicitors for the Respondents:

Vincent Young Lawyers

ORDERS

The Court declares that the First Respondent contravened s.44 of the Fair Work Act 2009 (Cth) (Fair Work Act) by failing to pay to the Applicant annual leave in accordance with s.90(2) of the Fair Work Act upon termination of the Applicant’s employment.
The Court declares that the Second Respondent was involved in the contravention of the First Respondent in relation to the contravention in order 1 above and pursuant to s.550 of the Fair Work Act is thereby taken to have contravened s.44 of the Fair Work Act.
The Court declares that the first respondent contravened s.535 of the Fair Work Act by failing to keep proper leave records after October 2009 and that the second respondent was involved in that contravention as managing director.
The parties are to bring in short minutes of order within 14 days concerning the payment due to Mr Smith based on the Court’s findings as to his leave entitlements at the time of termination, together with any necessary explanation of those…

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: [2015] FCCA 557
Decision Date: 28 August 2015

CaseChat Overview and Summary

In Smith v Quasar Constructions Pty Ltd, the plaintiff, Smith, brought proceedings against the defendant, Quasar Constructions Pty Ltd, alleging breach of contract and negligence. The dispute concerned alleged defects in building work carried out by Quasar Constructions at Smith's property. The matter was heard before Judge Driver.

The primary legal issues before the court were whether Quasar Constructions had breached its contractual obligations to perform the building work with due care and skill, and whether it had acted negligently in the execution of that work. Smith sought damages to rectify the alleged defects.

Judge Driver considered the terms of the building contract and the evidence presented regarding the standard of workmanship. The court applied the principles of contract law, focusing on the implied term of reasonable care and skill in the performance of building services. Expert evidence was crucial in determining whether the work met the expected standard. The court found that Quasar Constructions had failed to meet this standard, thereby breaching its contractual obligations.

The court ordered that Quasar Constructions pay damages to Smith in an amount to be assessed, representing the cost of rectifying the defective building work.

Orders