United Construction Pty Ltd v Birighitti - [2003] WASCA 24

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: UNITED CONSTRUCTION PTY LTD -v- BIRIGHITTI [2003] WASCA 24

CORAM: ANDERSON J (PRESIDING JUDGE)
SCOTT J
HASLUCK J

HEARD: 3 FEBRUARY 2002

DELIVERED : 27 FEBRUARY 2003

FILE NO/S: IAC 11 of 2002

BETWEEN: UNITED CONSTRUCTION PTY LTD
Appellant
AND
JOHN BIRIGHITTI
Respondent

Catchwords:

Industrial law - Arrangement to pay employee on a sub-contract basis - Effect of arrangement - Whether still an employee - Entitlement to long service leave under Long Service Leave Act 1958, s 8

Courts and judges - Appeals jurisdiction - Industrial Appeal Court - Jurisdiction to hear appeal from Full Bench - Decision of Full Bench that worker an employee for purposes of Long Service Leave Act - Appeal on ground that worker an independent contractor - Whether appeal raised question of "construction and interpretation" of Long Service Leave Act - Industrial Relations Act 1979, s 90(1)

Legislation:

Industrial Relations Act1979 (WA), s 85, s 86, s 90, s 96K

Long Service Leave Act 1958 (WA), s 4, s 6, s 7, s 8, s 9(2), s 11

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr T H F Caspersz and Mr D Brajevic
Respondent: Mr G McCorry

Solicitors:

Appellant: Blake Dawson Waldron
Respondent: Labourline

Case(s) referred to in judgment(s):

Cam & Sons Pty Ltd v Sargent (1940) 14 ALJR 162
Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Connelly v Wells (1993) 55 IR 73
Glass v Pioneer Rubber Works of Australia Ltd [1906] VLR 754
Haynes v McNeil (1906) 8 WALR 186
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Logan v Otis Elevator Co Pty Ltd [1999] IRCA 4
Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121
Massey v Crown Life Insurance Co [1978] 2 All ER 576
Narich Pty Ltd v Commissioner of Pay‑Roll Tax [1983] 2 NSWLR 597
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16

Case(s) also cited:

Davies v Youngs (WA) Pty Ltd 82 WAIG 1114
Vincent v Commissioner for Taxation 2000 ATC 4490

ANDERSON J (PRESIDING JUDGE): This is an appeal from a judgment of the Full Bench delivered on 19 August 2002 in which it dismissed an appeal from the decision of an Industrial Magistrate to award to the respondent a total of $21,711.78 for long service leave entitlements pursuant to the Long Service Leave Act 1958. The claim was calculated on the basis of 19 years continuous service. The appellant did not dispute that the respondent had performed work for the appellant for a continuous period of 19 years from January 1981 until retrenchment in January 2000. However, in the proceedings before the Industrial Magistrate the appellant contended that between July 1988 and October 1992 the respondent was not an "employee" of the appellant within the meaning of s 8 of the Long Service Leave Act.
The relevant provisions 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: [2003] WASCA 24
Decision Date: 27 FEBRUARY 2003

CaseChat Overview and Summary

The case of United Construction Pty Ltd v Birighitti involved a dispute over whether a worker was entitled to long service leave under the Long Service Leave Act 1958. The worker, Birighitti, had been paid through a sub-contracting arrangement by United Construction Pty Ltd. The legal question was whether Birighitti was an employee under the Act, and thus entitled to long service leave, or an independent contractor, and therefore not entitled. The case was heard first by a single judge, then by a Full Bench, and subsequently appealed to the Industrial Appeal Court.

The central legal issue was the interpretation of the Long Service Leave Act 1958, specifically whether Birighitti was an employee for the purposes of the Act. The Full Bench had previously found that Birighitti was an employee, and thus entitled to long service leave. The appeal was based on the argument that Birighitti was an independent contractor, and therefore not entitled to such leave. The Industrial Appeal Court needed to determine whether the appeal raised a question of the "construction and interpretation" of the Long Service Leave Act, as required under section 90(1) of the Industrial Relations Act 1979.

The Industrial Appeal Court found that the appeal did indeed raise a question of the "construction and interpretation" of the Long Service Leave Act, thus granting the Court the jurisdiction to hear the appeal. The Court concluded that Birighitti was an employee under the Act, and therefore entitled to long service leave. This decision confirmed the earlier finding of the Full Bench. Consequently, the appeal was dismissed. The Court's decision underscored the importance of correctly identifying the employment status of a worker in determining their entitlements under the Long Service Leave Act.

Orders