Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119

FEDERAL COURT OF AUSTRALIA

Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119 Appeal from: Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934

File numbers: NSD 495 of 2019

Judges: PERRAM, WIGNEY AND ANDERSON JJ

Date of judgment: 16 July 2020

Catchwords: INDUSTRIAL LAW – whether two truck drivers were employees for the purposes of the Fair Work Act 2009 (Cth) (FW Act) and the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act) – whether drivers were workers for the purposes of the Long Service Leave Act 1955 (NSW) (LSL Act) – assessment of the totality of working relationship – consideration of multi-factor test – drivers derived sole income working for same business for nearly 40 years – drivers were required to purchase a truck to retain work – drivers contracted with company through family partnerships – trucks were owned by family partnerships – drivers were required to be available to work during set hours – company logo was displayed on drivers' trucks for majority of relevant period – company branding on drivers' clothing – capacity of drivers to generate goodwill PRACTICE AND PROCEDURE – application for extension of time to file a notice of appeal – application lodged after costs judgment at first instance – consideration of length of, and explanation for, delay – consideration of prejudice to respondents and prospects of success of the appeal Held: appeal allowed – application for extension of time granted – truck drivers were employees for the purposes of the FW Act and SGA Act and workers for the purposes of the LSL Act

Legislation: Fair Work Act 2009 (Cth) ss 11, 13, 44, 45, 87(1), 90(2), 96, 116, 118, 335, 342(1), 357, 550(2)(c) Federal Court of Australia Act 1976 (Cth) Div 2 of Pt III Long Service Leave Act 1955 (NSW) s 3(1) Superannuation Guarantee (Administration) Act 1992 (Cth) ss 12(1), 12(3) Federal Court Rules 2011 (Cth) r 36.03