FEDERAL COURT OF AUSTRALIA
Weddall v Rasier Pacific Pty Ltd [2023] FCA 59
File number: VID 427 of 2021 Judgment of: SNADEN J Date of judgment: 8 February 2023 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment – alternative orders sought for pleading to be struck out –whether applicants have reasonable prospect of success – pleading alleges unlawful record keeping failures and breaches of general protections in contravention of the Fair Work Act 2009 (Cth) (“FW Act”) – where applicants allege employment by “one or more” entities – whether applicants required to identify contractual employment relationship – whether reasonable prospect of prosecuting claim under s 345(1) of the FW Act – whether representations made as to workplace rights – whether reasonable prospects of prosecuting claim under s 357(1) of the FW Act – whether applicants sufficiently identified representations – whether an “industrial association” has standing in relation to claims made under ss 535 and 536 of the FW Act – whether fifth applicant prohibited from applying for remedial orders under ss 345(1) and 357(1) of the FW Act – whether fifth applicant “entitled to represent industrial interests” of other applicants – where fifth applicant not registered under the Fair Work (Registered Organisations) Act 2009 (Cth) – whether pleading is scandalous or embarrassing – whether amended statement of claim fails to plead material facts – where pleading discursive and in the nature of submission – summary judgment declined – amended statement of claim struck out Legislation: Fair Work Act 2009 (Cth) ss 12, 535, 536, 539, 345, 357, 545, 546, 550, 557A
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 (Cth) rr 16.02, 16.21, 26.01
Cases cited: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298
Dare v Pulham (1982) 148 CLR 658
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409
Regional Express Holdings Ltd v Australian Federation of Airline Pilots (2017) 262 CLR 456
Retail & Fast Food Workers Union Inc v Tantex Holdings Pty Ltd (2020) 299 IR 56
Sabapathy v Jetstar Airways (2021) 283 FCR 348
Spencer v Commonwealth (2010) 241 CLR 118
Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905
Whitby v ZG Operations Australia Pty Ltd (No 2) [2019] FCA 201
White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 97 Date of last submissions:
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- AGLC
- Weddall v Rasier Pacific Pty Ltd [2023] FCA 59
- Case
- [2023] FCA 59
- Decision Date
CaseChat Overview and Summary
The court considered several legal issues, including whether the applicants had to identify the specific contractual employment relationship, whether they had a reasonable prospect of prosecuting claims under sections 345(1) and 357(1) of the Fair Work Act, whether the applicants had sufficiently identified representations made as to workplace rights, and whether an “industrial association” has standing in relation to claims made under sections 535 and 536 of the Fair Work Act. Additionally, the court examined whether the fifth applicant, who was not registered under the Fair Work (Registered Organisations) Act 2009, was entitled to represent the industrial interests of the other applicants.
After considering the arguments and the evidence presented, the court found that the applicants had not demonstrated a reasonable prospect of success on their claims. The court also determined that the ASOC was inadequate as it was discursive in nature and did not sufficiently plead material facts. The applicants had failed to identify specific employers and had not properly articulated their claims. The court concluded that the applicants’ pleading was scandalous or embarrassing and that the ASOC should be struck out. The court further declined to grant summary judgment and dismissed the respondents’ interlocutory application.
The final orders of the court were that the applicants' amended statement of claim be struck out in its entirety, the respondents' amended interlocutory application otherwise be dismissed, and the parties were to confer and agree on a minute of orders reflecting the court's reasons for judgment. If the parties could not agree, the matter was to be listed for case management.
Orders
Orders of the court
1. The applicants’ amended statement of claim dated 28 October 2021 be struck out in its entirety.
2. The respondents’ amended interlocutory application dated 12 November 2021 otherwise be dismissed.
3. Within 14 days of the date of these orders, the parties are to confer and, if possible, agree upon, a minute of orders that otherwise reflects the court’s reasons for judgment herein.
4. In the event that no such agreement is possible, the parties advise the court accordingly and the matter be listed for case management on a date to be fixed.
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
Ratio Decidendi
Legal Principle Established
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