FEDERAL CIRCUIT COURT OF AUSTRALIA
Vitale v The Trustee for the Davis Bros Unit Trust [2021] FCCA 214
File number(s): BRG 56 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 9 February 2021 Catchwords: PRACTICE AND PROCEDURE – Whether statement of claim pleads facts sufficient to disclose a cause of action – where exercise of workplace right to make inquiry alleged.
INDUSTRIAL LAW – Commonwealth – terms and conditions of employment – termination of employment – particular cases.
Legislation: Fair Work Act 2009 (Cth), ss 340(1)(a), 341(1)(c)(ii), 342, 342(1), items 1(a), (b) and (c), 343, 343(1), 343(1)(a), 343(1)(b), 345(1), 358, 550, 550(2), 550(2)(a), 550(2)(c), 570(2)
Federal Circuit Court Rules 2001 (Cth), rr 1.05(3)(b), Sch 3, Pt 2, Item 11
Federal Court Rules 2011 (Cth), rr 8.05, 16.21(1), 16.21(2), 16.45(2)
Cases cited: Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309
Esso Australia Pty Ltd v Australian Workers’ Union (2014) 263 CLR 551
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Tattsbet Ltd v Morrow (2015) 233 FCR 46
Number of paragraphs: 55 Date of last submission/s: 27 October 2020 Date of hearing: 27 October 2020 Place: Brisbane Solicitor for the Applicant: FWEL Pty Ltd t/a Fair Work Employment Lawyers Counsel for the Respondents: Mr Rawlings Solicitor for the Respondents: Gall Standfield and Smith ORDERS
BRG 56 of 2020 BETWEEN: VINCENZO ROBERT VITALE
Applicant
AND: THE TRUSTEE FOR THE DAVIS BROS UNIT TRUST
First Respondent
DAVIS BROS. PLUMBING CONTRACTORS PTY LTD
Second Respondent
MYLES WILSON DAVIS
Third Respondent
WAYNE ANDREW DAVIS
Fourth Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
9 FEBRUARY 2021
THE COURT ORDERS THAT:
1.Paragraphs 6(e), 6(f), 7(e), 7(f), 12, 13, 39, 40, 41, 47, 50 of Part G of the Form 2 filed on 30 January, 2020 be struck out.
2.Paragraphs 11, 14, 45, 48 and 49 of Part G of the Form 2 filed on 30 January, 2020 be struck out with leave to replead.
3.The applicant file and serve an amended Form 2 by no later than 4.00pm on 24 February, 2020.
4.The respondents file and serve a defence no later than 4.00pm on 17 March, 2020.
5.The applicant pay the respondent’s costs of and incidental to the application in a case filed on 28 August, 2020 to be agreed between the parties and failing agreement to be fixed by the Court on the next court date.
6.The application is adjourned to 1 April, 2021 at 9:30am for directions.
REASONS FOR JUDGMENT
JUDGE JARRETT:
By their application filed on 28 August, 2020 the respondents seek orders that pursuant to rule 16.21(2) of the Federal Court Rules 2011 (Cth) (incorporated into the Federal Circuit Court Rules 2001 (Cth) by virtue of rule 1.05(3)(b) and Schedule 3, Part 2, Item 11 of the FCCR), the following paragraphs of Part G of the applicant’s Form 2 Claim under the Fair Work Act 2009 (Cth), alleging dismissal in contravention of a general protection,…
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- Case
- [2021] FCCA 214
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the applicant's statement of claim, as particularised, pleaded facts sufficient to disclose a cause of action for coercion under the *Fair Work Act 2009* (Cth). Specifically, the court had to determine if the alleged conduct constituted an unlawful threat or action intended to coerce the applicant in relation to the exercise of his workplace rights, including his right to superannuation entitlements and his right to make inquiries about his workplace rights.
Jarrett J reasoned that for a claim of coercion under section 343(1)(a) and (b) of the *Fair Work Act*, the applicant must plead facts demonstrating that a person organised or took, or threatened to organise and take, action with the intent to coerce the applicant into not exercising, or exercising in a particular way, a workplace right. The court found that some paragraphs, particularly those relating to the applicant's illiteracy and the specific threats made regarding pay and future employment, did not sufficiently disclose a cause of action for coercion as pleaded. However, other paragraphs, which alleged threats of dismissal if the applicant pursued his superannuation claim, were considered to disclose a cause of action for coercion in relation to his right to inquire about workplace rights.
Consequently, Jarrett J ordered that several paragraphs of the statement of claim be struck out, with leave granted to replead certain others. The applicant was directed to file an amended statement of claim, and the respondents were ordered to file a defence. The applicant was also ordered to pay the respondents' costs of the application.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. Paragraphs 6(e), 6(f), 7(e), 7(f), 12, 13, 39, 40, 41, 47, 50 of Part G of the Form 2 filed on 30 January, 2020 be struck out.
2. Paragraphs 11, 14, 45, 48 and 49 of Part G of the Form 2 filed on 30 January, 2020 be struck out with leave to replead.
3. The applicant file and serve an amended Form 2 by no later than 4.00pm on 24 February, 2020.
4. The respondents file and serve a defence no later than 4.00pm on 17 March, 2020.
5. The applicant pay the respondent’s costs of and incidental to the application in a case filed on 28 August, 2020 to be agreed between the parties and failing agreement to be fixed by the Court on the next court date.
6. The application is adjourned to 1 April, 2021 at 9:30am for directions.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
On 20 October, 2020 the applicant gave some further and better particulars of some of the matters alleged in the Form 2. CONSIDERATION The paragraphs that the respondents seek to strike out can be conveniently grouped together according to the claim to which they relate.COERCION Paragraphs 11 – 14 and 47 – 50 relate to the applicant’s coercion claim. It is as well to set them out together with some adjacent paragraphs that give a flavour of the overall “pleading”:Complaints9. In or about September 2015 an employee of the Respondents, Mr Josh Kozinzi, made an application to have his superannuation paid out by the Respondents.10. Seemingly as a result of Mr Kozinzi’s application, shortly after that occurred, the Third Respondent, in his capacity as an involved person, directed the Applicant in these proceedings to set up a trust and sign trust deeds holding himself out as a trust rather than an individual.11. The Applicant was told by the Third Respondent that if he did not sign the aforementioned trust deeds, the Respondents would withhold his pay and he would not be able to work for the Respondents again.12. The Applicant is illiterate and partially deaf and was not in a position to fully understand the information put before him by the Third Respondent with respect to the aforementioned trust deeds.13 . The Applicant, feeling pressured to sign the paperwork before him, did so to establish trust with the Respondent.14. The Applicant was, in an act of coercion, threatened with dismissal by the Third Respondent if he did not sign the trust deed paperwork put in front of him, as pleaded in paragraph 10 herein.…Coercion47. The Applicant, at all material times, had the following workplace right:a. the right to remain free of an action that another person organised or took, or threatened to organise and take, with the intent to coerce him into not exercising, a workplace right or exercising a workplace right in a particularly way pursuant to 343(1)(a) and (b) FW Act.48. The First and Second Respondents engaged in coercion in September 2015 by advising the Applicant that if he wished to continue working for the Respondents and be paid for work already completed he would need to set up a trust and hold himself out as a trust.49. This conduct was done in order to:a. to coerce the Applicant into not being able to exercise a workplace right, being entitlements under a statutory instrument; andb. being his right to compulsory contributions of superannuation.50. The coercion contravenes section 349 of the FW Act, and this is a civil remedy provision.51. The Respondents engaged in coercion during the meeting of 19 September 2019 by advising the Applicant that if he pursued his claim for superannuation he would be dismissed from his employment.52. This conduct was done in order to:a. to coerce the Applicant into not exercising a workplace right, being his right to enquire about his workplace rights and entitlements under a statutory instrument.53. The coercion contravenes section 349 of the FW Act, and this is a civil remedy provision.