United Workers' Union v Victorian Protection Security Services Pty Ltd - [2022] FedCFamC2G 584

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
United Workers’ Union v Victorian Protection Security Services Pty Ltd [2022] FedCFamC2G 584

File number(s): MLG 1636 of 2021

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 25 July 2022

Catchwords: INDUSTRIAL LAW – Practice and procedure – application for default judgment – declarations and orders made.

Legislation:
Fair Work Act 2009 (Cth) ss 44, 45, 90(2), 357(1), 540, 545(1), 546(1), 547(2)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 211(3)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06(2), 13.04, 13.05, 13.06(2), Sch 1

Federal Court Rules 1979 (Cth) Or 35A r 3(2)(c)

Federal Court Rules 2011 (Cth) r 5.23(2)(c)

Security Services Industry Award 2010 cls 14, 20.2, 22.3

Security Services Industry Award 2020 cls 15, 18.2, 20.2

Cases cited:
Macquarie Bank Limited v Seagle [2005] FCA 1239

Macquarie Bank Limited v Seagle [2008] FCA 1417

Phonographic Performance Ltd v Maitra (1998) 41 IPR 225

Rathner, in the matter of Mildura Grand Pty Ltd (in liq) v Bendigo Skyrider Pty Ltd [2011] FCA 626

Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227

Division: Fair Work

Number of paragraphs: 18

Date of hearing: 18 July 2022

Place: Heard in Melbourne, delivered in Sydney

For the Applicant: Mr L McDonald

The Respondent: No appearance by, or on behalf of, the respondent
ORDERS

MLG 1636 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
UNITED WORKERS' UNION

Applicant

AND:
VICTORIAN PROTECTION SECURITY SERVICES PTY LTD ABN 093 606 378

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

25 JULY 2022

THE COURT DECLARES THAT:
1.The respondent contravened s 44(1) of the Fair Work Act 2009 (Cth) (FW Act) by failing, contrary to s 90(2) of the FW Act, to pay to Mr Saim Sahi at the time he ceased his employment with the respondent on 17 January 2020, an amount for annual leave that Mr Saim Sahi had accrued but had not taken.
2.The respondent contravened s 45 of the FW Act by failing to pay to Mr Saim Sahi the minimum rates of pay for an adult employee:
(a)for the period from 22 June 2015 to 31 December 2019, as prescribed by cl 14 of the Security Services Industry Award 2010 (2010 Award); and
(b)for the period from 1 January to 17 January 2020, as prescribed by cl 15 of the Security Services Industry Award 2020 (2020 Award).

3.The respondent contravened s 45 of the FW Act by failing to make superannuation contributions to a superannuation fund for the benefit of Mr Saim Sahi:
(a)for the period from 22 June 2015 to 31 December 2019, as prescribed by cl 20.2 of the 2010 Award; and
(b)for the period from 1 January to 17 January 2020, as prescribed by cl 18.2 of the 2020 Award.

4.The respondent contravened s 45 of the FW Act by failing to pay to Mr Saim…

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: [2022] FedCFamC2G 584
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) presided over a case involving the United Workers' Union (UWU) as the applicant and Victorian Protection Security Services Pty Ltd (VPSS) as the respondent. The UWU filed a proceeding on behalf of one of its members, Mr. Sahi, against VPSS, alleging multiple contraventions of the Fair Work Act 2009 (FW Act) and the Security Services Industry Awards 2010 and 2020. UWU claimed that VPSS failed to pay Mr. Sahi the appropriate wages, superannuation contributions, and annual leave payments, and misrepresented the nature of Mr. Sahi's employment contract.

The court was required to decide whether VPSS was in default, as defined by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (GFL Rules), and if so, whether to grant the relief sought by UWU. The court considered the principles established in previous cases, which held that a statement of claim must plead at least one reasonable cause of action that supports the granting of the relief sought, and that the court retains a discretion not to make an order under r 13.05(2)(c) of the GFL Rules even if the preconditions for making an order are satisfied.

After reviewing the facts and matters alleged in the statement of claim, the court found that VPSS was indeed in default, as it had failed to file a notice of address for service, a reply, or a defence. The court also determined that UWU was entitled to the declarations and orders it sought, and would make declarations and orders substantially to the effect claimed by UWU. The court further decided to order VPSS to pay interest on the amounts it ought to have paid, but did not pay to Mr. Sahi, pursuant to s 211(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

In summary, the Federal Circuit and Family Court of Australia (Division 2) found the respondent, VPSS, in default and granted the relief sought by the applicant, UWU. The court declared that VPSS had contravened various provisions of the Fair Work Act 2009 (FW Act) and the Security Services Industry Awards 2010 and 2020, and ordered VPSS to pay compensation and interest to Mr. Sahi. The court also reserved the liberty for UWU to apply for the payment of pecuniary penalties in the future.

Orders