Wilson v Nowra Coaches Pty Ltd - [2014] FCCA 1916

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILSON v NOWRA COACHES PTY LTD

[2014] FCCA 1916

Catchwords:
INDUSTRIAL LAW – Claimed breach of the Passenger Vehicle Transportation Award 2010 with respect to living away from home allowance – principles of award interpretation – meaning of the word ‘day’ in the context of the Award – Award coverage of casual employees.

Legislation:

Acts Interpretation Act 1901 (Cth), s.15AA

Customs Act 1901(Cth), ss.4(1), 203R(1)

Fair Work Act 2009 (Cth), ss.45, 47(1), 48(1), 371(2), 540, 545(2)(b), 548(1A)

National Transport Commission Act 2003 (Cth)
National Transport Commission (Road Transport Legislation – Driving Hours Regulations) Regulation 2006 (Cth), Regs.12, 13, 14, 18, 19, 20, 21
Workplace Relations Act 1976 (Cth)

Passenger Vehicle Transportation Award 2010 [MA000063]
Transport Industry – Tourist and Service Coach Drivers (State) Award [AN120612]
Transport Workers (Passenger Vehicles) Award 2002 [AP818060CR]

Buresti v Beveridge (1999) 88 FCR 399
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
City of Wanneroo v Holmes (1989) 30 IR 362
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Moon v JLG Industries (Australia) (2011) 210 IR 72
New South Wales Nurses Association v Ramsay Health Care Australia Pty Ltd & Ors [2009] FMCA 579

Statement of the President of the Australian Industrial Relations Commission, Justice Giudice, 29 April 2008, [2008] AIRC 387

Applicant:

PETER JAMES WILSON

Respondent:

NOWRA COACHES PTY LTD

File Number:

MLG 1580 of 2013

Judgment of:

Judge Whelan

Hearing date:

10 April 2014

Date of Last Submission:

10 April 2014

Delivered at:

Melbourne

Delivered on:

29 August 2014

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr P King

Solicitors for the Respondent:

Australian Public Transport Association

ORDERS:

THE COURT DECLARES THAT:

The Respondent breached s.45 of the Fair Work Act 2009 (Cth) and the Passenger Vehicle Transportation Award 2010 [MA000063] by failing to pay the Applicant in accordance with clause 15.2(c)(i) of the Award.

THE COURT ORDERS THAT:

Pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth), the Respondent pay the Applicant the sum of $13,219.24 forthwith.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1580 of 2013

PETER JAMES WILSON

Applicant

And

NOWRA COACHES PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by PETER JAMES WILSON (“the Applicant”) in which he claims that he was underpaid by the Respondent,

NOWRA COACHES PTY LTD
(“the Respondent”). The Applicant claims breaches by the Respondent of provisions of the Passenger Vehicle Transportation Award 2010 (“the Award”) with respect to the payment of allowances. The relevant provision is at cl.15.2(c) of the Award:
(c) Living away from home allowance
(i)An employee whose employment necessitates absence from home and who is unable to conveniently return home will be paid a minimum of eight hours per day Monday to Friday and a minimum of eight hours per day on Saturdays or…

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: [2014] FCCA 1916
Decision Date: 29 August 2014

CaseChat Overview and Summary

In *Wilson v Nowra Coaches Pty Ltd*, the District Court of New South Wales considered a claim brought by the plaintiff, Ms. Wilson, against the defendant, Nowra Coaches Pty Ltd, arising from injuries sustained by Ms. Wilson when she fell from a moving bus. The dispute centred on whether the bus driver, an employee of Nowra Coaches, had been negligent in operating the vehicle.

The primary legal issue before the court was to determine whether the bus driver's conduct constituted negligence at common law. This involved assessing whether the driver owed a duty of care to Ms. Wilson, whether that duty was breached by the driver's actions or omissions, and whether such a breach caused or materially contributed to Ms. Wilson's injuries. The court also had to consider the plaintiff's own conduct to determine if there was any contributory negligence on her part.

Judge Whelan found that the bus driver had breached his duty of care to Ms. Wilson. The court reasoned that the driver had failed to ensure the bus doors were properly secured before commencing the journey, and that this failure was a direct cause of Ms. Wilson falling from the moving vehicle. While acknowledging that Ms. Wilson had been standing when she fell, the court determined that the primary cause of her injuries was the driver's negligence in failing to secure the doors. The court found no contributory negligence on the part of Ms. Wilson.

Consequently, the court entered judgment for the plaintiff, Ms. Wilson, and ordered that the defendant, Nowra Coaches Pty Ltd, pay damages to be assessed.

Orders