INDUSTRIAL LAW – whether relationship of employer and employee established – clause acknowledging the person was an independent contractor –working in the enterprise of appellant –paid by reference to value of business transacted – person employing her own staff – divergence between overall income and personal income – absence of PAYG deductions – presence of GST collections
INDUSTRIAL LAW –general protections – adverse action –workplace right – workplace law – independent contractor – whether termination of engagement occurred because the person exercised or proposed to exercise workplace right – whether an independent contractor entitled to a benefit under a workplace law that regulated relationships between employers and employees – proposal to initiate or to participate in a process or proceedings under a law – proposal to make a complaint or inquiry to seek compliance with a law on behalf of others – whether trial judge failed to make findings necessary to engage reverse onus provision
STATUTORY INTERPRETATION – “law of the Commonwealth”
INDUSTRIAL LAW – sham contracting – failure by trial judge to deal with claim
PRACTICE AND PROCEDURE – delay in the delivery of judgment and publication of reasons – whether excessive delay rendered judgment unsafe
PRACTICE AND PROCEDURE – alternative claim not decided by trial judge – whether unsuccessful respondent to appeal entitled to have alternative claim determined
[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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AGLC
Tattsbet Ltd v Morrow [2015] FCAFC 62
Case
[2015] FCAFC 62
Decision Date
CaseChat Overview and Summary
In Tattsbet Ltd v Morrow, the primary dispute involved the classification of the respondent's employment status as an independent contractor versus an employee, and whether the termination of her engagement was due to her exercising or proposing to exercise workplace rights. The matter was heard and determined by the Federal Circuit Court, with both parties subsequently appealing to the Full Court. The legal issues central to this case revolved around whether the respondent was indeed an independent contractor, if her termination was linked to exercising workplace rights, and whether the delay in the delivery of judgment affected its validity.
The Full Court examined the nature of the respondent’s relationship with Tattsbet, considering factors such as control over her work, the payment structure, and the presence of GST collections rather than PAYG deductions. The court found that the respondent's arrangement with Tattsbet did not establish an employer-employee relationship, thereby dismissing her claims under the Fair Work Act 2009 (Cth). The court also considered the respondent's allegations of adverse action under the Fair Work Act and found that the trial judge failed to make necessary findings to engage the reverse onus provision. Furthermore, the Full Court found the delay in delivering the judgment to be excessive, rendering it unsafe, and consequently set aside the original judgment.
The Full Court ordered the appeal to be allowed, the primary judge's orders to be set aside, and specific aspects of the respondent's claims to be remitted back to the Federal Circuit Court for further hearing and determination. These included the adverse action claim, based on the respondent's proposal to make a complaint to the Australian Taxation Office, and the respondent's case under the Independent Contractors Act 2006 (Cth). The court's decision highlighted the necessity of timely judicial processes and meticulous application of industrial law principles in employment disputes.
Orders
Orders of the court
1. The appeal be allowed.
2. Orders 1 and 2 made by the Federal Circuit Court on 4 July 2014 be set aside.
3. The respondent’s application under s 117 of the Fair Work Act 2009 (Cth) be dismissed.
4. The respondent’s application under s 357 of the Fair Work Act 2009 (Cth) be dismissed.
5. The cross-appeal be allowed in part.
6. To the extent that the respondent’s case in the Federal Circuit Court involved an allegation of a contravention of s 340 of the Fair Work Act 2009 (Cth) constituted by adverse action taken against her, being action of the kind referred to in item 3 in the table in s 342(1) of the Fair Work Act 2009 (Cth) –
(a) because she proposed to exercise the workplace rights referred to in para (b) and subpara (i) of para (c) of s 341(1) of the Fair Work Act 2009 (Cth), or either of those rights; or
(b) to prevent the exercise by her of the said workplace rights or either of them;
(“the respondent’s adverse action case”), the dismissal of that case by the Federal Circuit Court be set aside.
7. The respondent’s adverse action case be remitted to the Federal Circuit Court for hearing and determination –
(a) by reference to the appellant’s concession that the respondent proposed to make a complaint or inquiry to the Australian Taxation Office, being a body having the capacity under the Superannuation Guarantee (Administration) Act 1992 (Cth) to seek compliance with that Act; and
(b) otherwise, conformably with the reasons of the Full Court published this day.
8. The respondent’s case under the Independent Contractors Act 2006 (Cth) be remitted to the Federal Circuit Court for hearing and determination.
9. Otherwise, the cross-appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Since I take the view that the respondent was not in truth the employee of the appellant, I would hold that the factual premise of her claim under s 357 falls away. I would, therefore, reject the claim. THE CROSS-APPEAL – DELAY IN THE DELIVERY OF JUDGMENT The respondent’s second ground of cross-appeal was as follows:The Judgment is rendered unsafe, and should be set aside accordingly, by reason of the delay between the hearing of the proceeding, on 10 October 2012, and the delivery of Judgment on 4 July 2014 (with written reasons being published on 7 July 2014), particularly given the learned trial judge’s apparent acceptance of the evidence of Mr Fletton as to the reasons for termination, where such a conclusion on the credibility of the evidence given at trial needed to be made promptly.Regrettably, there is considerable substance in the complaint which the respondent makes about the delay in the delivery of judgment, and in the publication of reasons, at first instance in the present case. On the appeal, the respondent caused to be read her own affidavit of 3 February 2015. She said that, on 7 February 2014, more than 15 months after the filing of the last post-hearing submission in the case, she sent an email to the President of the Bar Association, Mr Peter Davis, requesting his assistance in addressing the delay in the resolution of her case. There followed an exchange of correspondence with Mr Davis in which the respondent clarified when final submissions had been filed. It was not until 11 June 2014 that the respondent received an email from the Bar Association, attaching a letter from the court advising that judgment was anticipated by the end of June 2014. The respondent was next advised by the Federal Circuit Court that judgment would be delivered on 26 June 2014, but, on that date, the matter was adjourned to 4 July 2014. On that day, the primary Judge delivered judgment, and his Honour’s written reasons were available on 7 July 2014. The principles which inform the decision of an appellate court to hold that excessive delay in the delivery of judgment at first instance in the case concerned has rendered that judgment unsafe were discussed at length by the Full Court in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, 32-35 [66]-[83]. I would accept that, particularly where a transcript of the evidence at trial exists, mere delay need not justify a conclusion that the fact-finding process has miscarried. There are, however, additional circumstances which give rise to concern in the present case. In Expectation, the Full Court said (140 FCR 17, 33 [74]):The problem is not restricted to fading memory. A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure — whether from the parties, the management of the Court, the press or parliamentarians. That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction. In the present case, I can see no sign that the primary Judge sought to take the easiest path to the resolution of the disputes that were before him. To the contrary: his Honour gave careful attention to the appellant’s reasons for having taken adverse action against the respondent, notwithstanding that, on his findings, her case failed at an anterior stage. Nonetheless, the pressures to which the Full Court referred in Expectation appear to have been present here. The circumstances which surrounded the delivery of judgment bespeak an environment in which his Honour felt under considerable pressure to complete his reasons at the last minute.