Vella v Integral Energy

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VELLA v INTEGRAL ENERGY [2011] FMCA 6

INDUSTRIAL LAW – Whether the applicant was an employee of or an independent contractor with the respondent considered.

PRACTICE AND PROCEDURE – Determination of a preliminary issue on an interlocutory basis of whether the applicant has advanced a prima facie case on the issue of the applicant’s employment status.

Fair Work Act 2009 (Cth)
Federal Magistrates Act 1999 (Cth), s.17A
Independent Contractors Act 2005 (Cth)

Bulong Nickel Pty Ltd v Bateman Project Engineering Pty Ltd [2001] FCA 1900

Caterpillar Inc v John Deere Ltd [1999] FCA 1503

Applicant: ADAM VELLA

Respondent: INTEGRAL ENERGY

File Number: SYG 671 of 2010

Judgment of: Driver FM

Hearing date: 18 November 2010

Delivered at: Sydney

Delivered on: 31 January 2011

REPRESENTATION

Counsel for the Applicant: Mr I Latham

Solicitors for the Applicant: Turner Freeman Lawyers

Counsel for the Respondent: Ms K Nomchong

Solicitors for the Respondent: Middletons

ORDERS

1. The Court declares that the applicant has failed to establish a prima facie case that he was an employee of the respondent or of its predecessor organisations.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 671 of 2010

ADAM VELLA

Applicant

And

INTEGRAL ENERGY

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This judgment concerns an Application in a Case filed on 22 October 2010.  The application relates to proceedings under the Fair Work Act 2009 (Cth) and the Independent Contractors Act 2005 (Cth).  The principal application is brought on alternative bases that the applicant is an employee or an independent contractor.  The respondent sought to put the applicant to an election on that issue.  That was resisted by the applicant on the basis that he was entitled to argue alternative bases for his claim.  I put to the parties that, as a preliminary issue, the Court might determine, on an interlocutory basis, the question of whether Mr Vella was an employee or an independent contractor with the respondent.  It was agreed that that issue could not, in an interlocutory judgment, be determined definitively but that the Court might determine whether the applicant has reasonable prospects of success in arguing that he was an employee.  Given that the Application in a Case seeks a declaration on the point, I have taken the view that the Court should make a interlocutory ruling. 

2. The issue was argued before me on the basis that the Court would determine whether the applicant has advanced a prima facie case that he was an employee.  That is a higher standard than applies in relation to an arguable case[1].  The purpose of seeking to establish a prima facie case, at this stage, is to determine whether it is worth the time and expense for the parties to research and argue the issue at a final hearing.  Ultimately, both parties and the Court agreed to that course.

   [1] See s.17A of the Federal Magistrates Act 1999 (Cth)

3. The interlocutory hearing on the separate issue proceeded on the basis of written and oral submissions.