Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134

FEDERAL COURT OF AUSTRALIA

Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134 Appeal from: Fair Work Ombudsman and Ors v Atkins Freight Services Pty Ltd [2015] SAIRC 22

File number: SAD 66 of 2016

Judge: WHITE J

Date of judgment: 22 September 2017

Catchwords: INDUSTRIAL LAW – successful claims for payment of award and statutory entitlements brought against Appellant by former employees and Fair Work Ombudsman in the Industrial Relations Court of South Australia (IRCSA) – appeal against Industrial Magistrate's decision under s 565 of Fair Work Act 2009 (Cth) – whether Appellant not liable due to Deeds of Settlement entered into by former employees – whether Industrial Magistrate could make order with respect to underpayment – whether Industrial Magistrate should have declined in the exercise of discretion – grounds dismissed. INDUSTRIAL LAW – whether former employee's employment covered by employee collective agreement rather than Workplace Relations Act 1996 (Cth) award – Agreement contained inconsistent statements as to the persons it covered – Agreement did not define who it applied to – no evidence led to indicate former employee was covered by Agreement – Appellant did not discharge onus – ground dismissed.

Legislation: Fair Work Act 2009 (Cth) ss 545(3), 565, 681 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Schs 3, 13, 16 Workplace Relations Act 1996 (Cth) ss 186, 327, 333B, 340, 346M, 349, 607, 612, 717, 719, 720

Cases cited: Australian and New Zealand Banking Group Ltd v Finance Sector Union of Australia [2001] FCA 178; (2001) 111 IR 227 Josephson v Walker (1914) 18 CLR 691 Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18 Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99; (2015) 240 FCR 578 Logan v Otis Elevator Co Pty Ltd [1999] IRCA 4; (1999) 94 IR 218 Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; (2000) 99 FCR 95 Mutual Acceptance Co Ltd v Federal Commissioner of Taxation (1944) 69 CLR 389 Pacific Publications Pty Ltd v Cantlon (1983) 4 IR 415 Poletti v Ecob (No 2) (1989) 91 ALR 381; (1989) 31 IR 321 Poulos v Waltons Stores (Interstate) Ltd (1986) 10 FCR 429 Ramsey Food Processing Pty Ltd v Tomlinson [2014] NSWCA 237 Ray v Radano [1967] AR (NSW) 471 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406 The Commonwealth v Muratore (1978) 141 CLR 296 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 Water Board v Moustakas (1987) 180 CLR 491