Sng v Canvas Australia Solutions Pty Ltd - [2019] FCCA 1155

FEDERAL CIRCUIT COURT OF AUSTRALIA

SNG v CANVAS AUSTRALIA SOLUTIONS PTY LTD

[2019] FCCA 1155

Catchwords:
INDUSTRIAL LAW – Overseas employment – operation of Fair Work Act 2009 (Cth) – National Employment Standards – redundancy pay – duties outside Australia – whether Fair Work Act applicable to worker engaged in employment outside Australian territory by Australian company.

Legislation:

Fair Work Act 2009 (Cth) ss.14(1), ss.35, 44, 61, 119, 365, 389.

Cases cited:

Cohen v iSOFT Group Pty Limited [2013] FCAFC 49; (2013) 298 ALR 516; (2013) 234 IR 386

Doyle v Emperor Energy Limited (No 2) [2017] FCCA 3088
Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107

Woodsford v Range International Limited [2018] FCA 1007

Applicant:

BOON HUA MARTIN SNG

Respondent:

CANVAS AUSTRALIA SOLUTIONS PTY LTD ACN 161 452 731

File Number:

SYG 2399 of 2018

Judgment of:

Judge Baird

Hearing date:

28 March 2019

Date of Last Submission:

5 April 2019

Delivered at:

Sydney

Delivered on:

3 May 2019

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Mr G. Baldwin, Stacks Champion

Counsel for the Respondent:

Solicitors for the Respondent:

Ms P. Costigan, Petrine Costigan Lawyers

ORDERS

The application be dismissed.
No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2399 of 2018

BOON HUA MARTIN SNG

Applicant

And

CANVAS AUSTRALIA SOLUTIONS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

The central issue in this case is whether the Applicant, Mr Martin Boon Hua Sng, was, in respect of his employment as channel manager (APAC) with the Respondent, Canvas Solutions Australia Pty Limited, an Australian–based employee within the meaning of s.35(2) of the Fair Work Act 2009 (Cth) or whether he is, by reason of s.35(3) of the Act, a person to whom s.35(2), and thus the Act, does not apply. If the Act does apply, Mr Sng claims to be entitled to a redundancy payment in accordance with s.119(2) of the Act.

Background

Mr Sng is a resident of, and located in, Singapore. On 1 November 2016, he was employed by Canvas under a written agreement headed “Employment Agreement for Channel and Partnership Manager (APAC)”.
The facts are largely not in dispute. Canvas has its registered office in Macquarie Street, Sydney, and is a national system employer within the meaning of s.14 of the Act. Mr Sng was employed under the Agreement. He was located in Singapore. His employment was terminated by letter dated 13 June 2018 (13 June letter) on the grounds that his role was to be made redundant. He was provided with one months’ notice. Mr Sng says he is entitled to redundancy pay from Canvas as provided by s.119 of the Act. He says he is an Australian–based employee within the meaning of s.35 of the Act. Canvas submits that he is not. Mr Sng asserts he should have been paid six weeks pay, and, based on his contracted gross salary of A$150,000, he says he is entitled to payment 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.

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Details

Case: [2019] FCCA 1155
Decision Date: 3 May 2019

CaseChat Overview and Summary

In the matter of *Sng v Canvas Australia Solutions Pty Ltd*, heard before Judge Baird, the applicant, Mr. Sng, sought to enforce an arbitral award against the respondent, Canvas Australia Solutions Pty Ltd. The dispute arose from a contract for services, which contained an arbitration clause. Following an arbitration, an award was made in favour of Mr. Sng. Mr. Sng subsequently sought to have this award recognised and enforced by the court.

The primary legal issue before the court was whether the arbitral award was enforceable under the relevant legislation, specifically the *International Arbitration Act 1974* (Cth) (the Act), which gives effect to the *New York Convention*. This involved determining if the award met the criteria for recognition and enforcement, and whether any grounds for refusal existed under the Act.

Judge Baird considered the provisions of the Act and the New York Convention, which permit the enforcement of foreign arbitral awards unless certain limited grounds for refusal are established. The court examined the evidence presented by both parties, focusing on whether Canvas Australia Solutions Pty Ltd had demonstrated any of the grounds for refusal, such as lack of proper notice of the arbitration, inability to present its case, or the award dealing with matters beyond the scope of the arbitration agreement. The court found that no such grounds were established, and the award was therefore to be recognised and enforced.

The court made orders for the enforcement of the arbitral award in favour of Mr. Sng.

Orders