Wilkinson v Wilson Security Pty Ltd (No 3)

Link copied
Case Copied 74 min read

FEDERAL COURT OF AUSTRALIA

Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705

File number: WAD 138 of 2021
Judgment of: COLVIN J
Date of judgment: 2 July 2024
Catchwords:

INDUSTRIAL LAW - alleged contraventions of s 45, s 323 and s 536 of the Fair Work Act 2009 (Cth) - where applicant employed on a fly-in, fly-out basis under Security Services Industry Awards 2010 and 2020 (Awards) - where first respondent provided one continuous 'long break' per roster cycle - where applicant required to work more than 48 hours without a 'long break' - where applicant required to perform pre-start checks before using company vehicles - where applicant required to work an additional 15 minutes per shift - where each shift included 'night span' hours but no permanent night shift allowance paid - where no unpaid breaks provided - where paid breaks were informal and taken opportunistically - where applicant paid at Level 2 classification under the Awards - where pay slips not particularised - whether rostering arrangements complied with 'long break' provisions contained in the Awards - whether applicant underpaid for work done - whether applicant entitled to permanent night shift allowance - whether payslips complied with the Fair Work Regulations 2009 (Cth) - whether rest and meal break provisions of the Awards complied with - whether contraventions were 'serious contraventions' under s 557A of the Fair Work Act - held first respondent contravened s 45 of the Fair Work Act by failing to comply with certain provisions contained in the Awards - held failure to pay an entitlement under Awards not alone sufficient to establish contravention of s 323 of the Fair Work Act where amount is in dispute - held first respondent contravened s 536(2)(b) of the Fair Work Act by failing to specify matters required by the Regulations - held contraventions not 'serious contraventions' - application against first respondent allowed in part

INDUSTRIAL LAW - consideration of general principles as to the construction of modern awards - reasons published by the Fair Work Commission in the award approval process considered relevant extrinsic material

INDUSTRIAL LAW - accessorial liability - whether second respondent 'involved in' the contraventions so as to establish accessorial liability under s 550 of the Fair Work Act - where contravening conduct fell outside the second respondent's work responsibilities and job description - application against second respondent dismissed
Legislation:

Fair Work Act 2009 (Cth) ss 45, 323, 324, 535, 536, 539, 550, 557A

Fair Work Regulations 2009 (Cth) regs 3.44, 3.46, Division 3 Subdivision 2
Cases cited:

4 yearly review of modern awards - Plain language re-drafting - Security Services Industry Award 2010 [2018] FWCFB 6755

Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241

Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878

Australian Building and Construction Commissioner v Parker [2017] FCA 564

Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Wilkinson v Wilson Security Pty Ltd (No 3) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2024] FCA 705
Decision Date

CaseChat Overview and Summary

In the matter of Wilkinson v Wilson Security Pty Ltd (No 3), the applicant, Mr Wilkinson, brought proceedings against his employer, Wilson Security, and Mr Canadas, an employee of Wilson Security, in the Fair Work Division of the Federal Circuit and Family Court of Australia. The dispute centred around allegations of contraventions of sections 45, 323, and 536 of the Fair Work Act 2009 (Cth) by Wilson Security, as well as a claim for accessorial liability against Mr Canadas. The applicant, employed under a fly-in, fly-out roster, alleged that the respondent failed to provide adequate long breaks, over-rostered him, imposed additional work duties, and failed to pay a permanent night shift allowance. Additionally, the applicant claimed that his payslips did not comply with the Fair Work Regulations 2009 (Cth). The court was tasked with determining whether Wilson Security contravened specific provisions of the Security Services Industry Awards 2010 and 2020 (Awards), whether the applicant was underpaid, whether he was entitled to a permanent night shift allowance, and if the payslips complied with the Fair Work Regulations.

The court found that Wilson Security contravened section 45 of the Fair Work Act by failing to comply with certain provisions contained in the Awards. This included not providing a long break in each roster cycle and requiring the applicant to work more than 48 hours without a long break. Additionally, the court held that Wilson Security contravened section 536(2)(b) of the Fair Work Act by failing to specify matters required by the Regulations. However, the court did not find that the failure to pay an entitlement under the Awards alone was sufficient to establish a contravention of section 323 of the Fair Work Act where the amount was in dispute. The court also held that the contraventions were not "serious contraventions" under section 557A of the Fair Work Act. The claim against Mr Canadas was dismissed as he was not involved in the contraventions that were found to have occurred.

The court's reasoning was based on the specific duties and knowledge of Mr Canadas, which did not extend to the contraventions identified. The court emphasised the importance of considering the general principles in the construction of modern awards, noting that reasons published by the Fair Work Commission during the award approval process were relevant extrinsic material. The court concluded that the applicant had succeeded in establishing four contraventions by Wilson Security and that a further hearing would be necessary to determine the relief, compensation, damages, and penalties. The proceedings against Mr Canadas were dismissed. The court ordered that the proceedings against the second respondent be dismissed and that a case management hearing be convened to determine the future conduct of the proceedings against Wilson Security.

Orders

Orders of the court

1. The proceedings as against the second respondent are dismissed.

2. There be a case management hearing as to the future conduct of the proceedings as against the first respondent on a date to be fixed upon request by the applicant or the first respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Beyond this, I do not consider it necessary or appropriate to undertake the task of considering the claims that Mr Canadas was an accessory to other contraventions by Wilson Security that I have found not to be established. To do so would require the formulation of assumptions as to the basis upon which those claims might be upheld. It would require the consideration of multiple alternatives in circumstances where the findings that I have made as to the scope of the responsibilities of Mr Canadas and his lack of knowledge of the requirements of the Awards should be sufficient to enable conclusions to be reached as to accessorial liability for other claims if the matter goes further and it is found that one or more of those other claims should be upheld.Conclusion Mr Wilkinson has succeeded in establishing four contraventions by Wilson Security. As to those contraventions it will be necessary for there to be a further hearing to determine the outstanding issues as to relief, the quantum of any compensation or damages (including the issue of setoff) and the quantum of any penalties. The appropriate course as to those contraventions is for a case management hearing to be convened at which the Court will make directions as to the future conduct of the proceedings as against Wilson Security. As to the claim against Mr Canadas, for reasons that have been given it is appropriate for those proceedings to be dismissed. I will make orders accordingly.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.