Thiess Pty Ltd v Sheehan

Case [2020] FCAFC 198

FEDERAL COURT OF AUSTRALIA

Thiess Pty Ltd v Sheehan [2020] FCAFC 198

Appeal from: Application for leave to appeal:  Sheehan v Thiess Pty Ltd [2019] FCA 1762
File number: WAD 566 of 2019
Judgment of: FLICK, KERR AND SNADEN JJ
Date of judgment: 16 November 2020
Catchwords:

INDUSTRIAL LAW – construction of enterprise agreement project working hours – hours for which an employee should be paid – dispute as to when project working hours ended – whether on departure from crib hut in particular location at which day’s work takes place or on exit through access gates to whole site

INDUSTRIAL LAW – principles of construction

PRACTICE AND PROCEDURE – recusal – apprehension of bias – whether prior professional relationship between judge and party should disqualify the former from sitting – whether bias is reasonably apprehended – recusal not appropriate 

Legislation:

Federal Court of Australia Act1976 (Cth) s 24, Pt IVA

Fair Work Act 2009 (Cth) – pt 2-4, div 4 – ss 187 and 570

Cases cited:

Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435

British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109

Brooks v The Upjohn Company (1998) 85 FCR 469

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Gascor t/as Gas & Fuel v Ellicott, Esso Australia Resource Ltd & BHP Petroleum (NW Shelf) Pty Ltd [1997] 1 VR 332

Kirby v Centro Properties Limited (No 2) (2008) 172 FCR 376

Livesey v The New South Wales Bar Association (1983) 151 CLR 288

Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd (2005) 144 FCR 264

R v Judge Russell; ex parte Reid (1984) 35 SASR 417

Re JRL; ex parte CJL (1986) 161 CLR 342

Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78

Re Thiess Pty Ltd [2012] FWAA 7466

S&R Investments Pty Ltd v Minister for Planning [2001] WASC 255

Seven Network Limited v News Limited [2005] FCAFC 125, (2005) 144 FCR 379

Western Australia v Watson [1990] WAR 248

Division: Fair Work Division
Registry: Western Australia
National Practice Area: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 82
Date of hearing: 30 July 2020
Counsel for the Applicant: Mr I Neil SC with Ms H Millar
Solicitor for the Applicant: Kingston Reid
Counsel for the Respondent: Mr T J Dixon with Ms T Wong
Solicitor for the Respondent: Nicholas Legal

ORDERS

WAD 566 of 2019
BETWEEN:

THIESS PTY LTD

Applicant
AND:

FRANK SHEEHAN

Respondent

ORDER MADE BY:

FLICK, KERR AND SNADEN JJ

DATE OF ORDER:

16 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The application for leave to appeal be granted.

2.The appeal be dismissed.

3.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

FLICK AND KERR JJ:

  1. The Wheatstone Project…

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AGLC
Thiess Pty Ltd v Sheehan [2020] FCAFC 198
Case
[2020] FCAFC 198
Decision Date

CaseChat Overview and Summary

In the case of Thiess Pty Ltd v Sheehan, the applicant sought leave to appeal against a decision of the primary judge concerning the interpretation of an enterprise agreement in relation to project working hours. The primary judge had ruled on a dispute between Thiess, an employer, and Sheehan, an employee, about the hours for which the employee should be paid. The specific issue was whether the project working hours ended when the employee left the crib hut at a particular location where the day’s work took place, or when the employee exited through the access gates to the entire site.

The legal issues the court had to address included the proper construction of the enterprise agreement, specifically clause 16(9), and the principles that should govern such construction. Additionally, the court needed to consider whether there was a basis for the primary judge to recuse themselves due to a prior professional relationship with a party to the proceedings, which could have given rise to an apprehension of bias.

The court held that while the primary judge’s decision had significant implications for the entitlements of a large number of employees, the errors identified in the appeal did not warrant a different outcome. The court found that the primary judge correctly interpreted the enterprise agreement, and there was no basis for the primary judge to recuse themselves as no reasonably apprehended bias was present. Consequently, the application for leave to appeal was granted, but the appeal itself was dismissed with no order as to costs.

Orders

Orders of the court

1. The application for leave to appeal be granted.

2. The appeal be dismissed.

3. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

If leave be granted, the written Outline of Submissions as filed on behalf of Thiess identified the “governing error” in the reasons of the primary Judge as follows: The governing error in the primary judgment[10]Thiess submits that Order 2(b) was the product of the primary judge’s misconstruction of clause 16(9), which in turn was the result of two anterior errors:(a)The first error was the view that clause 16(9) laid down ‘the time that must be included when scheduling and computing working hours, and that it stipulated the start and finish of scheduled working hours’.(b)The second error was the view that clause 16(9) was in part concerned with ‘identifying what will qualify as payment for work’, seemingly because the primary judge linked scheduled working hours with employees’ entitlement to remuneration, and found that the latter triggered the former.[11] The correct construction is that:(a)The purpose of the concept of Project Working Hours was not to state prescriptively when scheduled working hours must start and finish, but to identify when scheduled working hours could be scheduled.(b)Neither the concept of Project Working Hours, nor clause 16(9), had anything to do with identifying what would qualify as payment for work; indeed, clause 16(9) says nothing about employees’ entitlements to be paid. Those entitlements, and what triggers them, are to be found in other provisions – all of which explicitly link payment to the actual performance of work. (footnotes omitted). The discretion to grant or refuse leave to appeal, it has been said, is “a wide discretion” and one “not constrained by rigid rules”, but one “ordinarily guided by well-recognised principles”: Seven Network Limited v News Limited [2005] FCAFC 125 at [5], (2005) 144 FCR 379 per Branson J (Allsop and Edmonds JJ agreeing). Her Honour there went on to cite Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 and continued on to state that “[c]onsideration is usually given to whether the judgment is attended with sufficient doubt to warrant its being reconsidered and to whether substantial injustice would result if leave were refused supposing the judgment to be wrong”. Leave is more readily granted, her Honour recognised, “where the judgment, if allowed to stand, will have the practical effect of determining the claim of a party to relief”. Although the present proceeding centres upon the interpretation of particular wording in an enterprise agreement, it is concluded that leave to appeal should be granted but that the appeal should be dismissed. Leave should be granted primarily because the answers given by the primary Judge to the questions posed have “the practical effect of determining” the entitlements of a large number of employees. But neither of the two limbs to the “governing error” have been made out. The Wheatstone Agreement The Wheatstone Agreement was approved by Fair Work Australia on 29 August 2012: Thiess Pty Ltd Wheatstone Project Agreement 2012 [2012] FWAA 7466.

Ratio Decidendi

Legal Principle Established

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