The Federated Miscellaneous Workers Union of Australia v Richard Jay Distributors Pty Ltd

[1990] FCA 467

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JUDGMENT NO. Q,61 . .. /.?A

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY	)
INDUSTRIAL DIVISION	)
1 D1 2 of 1 9 8 9

BETWEEN:  THE FEDERATED MISCELLANEOUS WORKERS UNION OF
AUSTRALIA

Applicant

AND :  RICHARD JAY DISTRIBUTORS PTY LIMITED

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	1 8 JULY 1990
WHERE MADE:	DARWIN
THE COURT ORDERS THAT:

1.   The respondent pay to MS Rosa Almanza the sum of

$ 4 , 5 0 4 . 1 2 .

2.   The respondent pay the applicant's costs of and incidental to the proceedings, to be taxed.

NOTE:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

REQISTRY

RECEIVED

- 5 SEP 1990
FEDERAL COURT OF

AUSTRALIA

PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA	)
NORTHERN TERRITORY DISTRICT REGISTRY	1
INDUSTRIAL DIVISION	) D1 2 of 1989

BETWEEN:  THE FEDERATED MISCELLANEOUS WORKERS UNION OF
AUSTRALIA

Applicant

AND :  RICHARD JAY DISTRIBUTORS PTY LIMITED

Respondent

CORAM: PINCUS J.

PLACE: DARWIN

m: 18 JULY 1990

EX TEMPORE REASONS FOR JUDGMENT

This is a matter in which the evidence given is that the woman in question, whose name is MS Almanza, was an employee. That is supported, as is pointed out by counsel for the Union, by Exhibit 2, which is an agreement between Richard Jay Distributors and Job Start under which the woman was to be employed. It would of course have been hardly honest to

Commonwealth and not have an employee. receive the money, as seems to be admitted, from the M r Noonan, for the defendant, does not suggest that

that dishonest course was taken. What he does argue, as I understand it however, is that I should find that the woman falls within the category of casual employee. Now, a casual employee is defined, so far as relevant, as follows in clause 14(c) of the Laundries, Dry Cleaning and Laundromats (Northern Territory) Award as it stood at the relevant date:

"A casual employee is one engaged and paid as

such. A casual employee shall mean and be deemed to be an employee engaged to work for a lesser period than a working week of forty hours on the class of employment for which the casual is employed."

The evidence is that the working week was 55 hours and accepting for the moment the suggestions which were put in cross-examination, the facts would appear on that assumption to be that the woman had the right during that 55 hours, as and when she chose, to do ironing - and other duties - for people for her own profit. I would add that it seems odd, if that is the case, for Mr Noonan to have in fact put that the money from those activities was collected, but he later retracted that.

Accepting, as I say, the assumption that the woman was employed on that basis, I find that she was not a casual employee. She could not accurately be described as a person who was engaged to work for a lesser period than a working week of 40 hours. She was engaged to work for 55 hours, but

which was put, to make some money on the side.	with the right during that 55 hours, according to the case	One can imagine other situations in which people were so engaged; for example, one could engage a watchman on the basis that the employer had no objection to the watchman doing study during the period he was watching. One could engage a caretaker on the basis that the caretaker would work all night but, if he wished, engage in other activities which
would make him money during the night. He would still, as it seems to me, be engaged for the whole period as an employee.
Mr Noonan's suggestion is that the employment relationship kept on stopping and starting during the day and that seems to be, with respect, an extraordinary suggestion.
I think that the woman in question as an employee, clearly, on
any view as contemplated by the Job Start agreement. A side issue which was raised by Mr Waters, but seems to me to be irrelevant, is that it is unfortunate that, as appears, the purpose of the Job Start agreement was frustrated.
After working for a couple of weeks for no pay, apparently the woman was put off so that if the submission Mr Noonan put was accepted, the rather extraordinary result would be achieved that the $250, which this woman cost, would have been paid by the Commonwealth and the employer got her services it appears for absolutely nothing for a 55 hour week.
Fortunately, I do not think that the result which Mr Noonan
contends for can follow as a matter of law, and there will be judgment in accordance with the claim.

I certify that this and the 2 preceding pages are a true copy of the reasons for judgment herein of

His Honour Mr. Justice

Pincus .

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