Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 File number: NSD 1255 of 2016
Judge: FLICK J
Date of judgment: 12 October 2017
Catchwords: INDUSTRIAL LAW – nature of employment – permanent or casual employment – test to be applied when considering whether an employee is permanent or casual – whether the focus should be on the substance of employment or the terms of engagement – employee was both engaged as a casual employee and employment had the character of casual employment INDUSTRIAL LAW – right to convert to permanent employment – notification of dispute – whether industrial instrument confers right to convert – principles of interpretation of industrial instruments – instrument confers right to convert on "like for like" basis – "like for like" to be given a practical meaning in the context of the relevant industry – right to convert to full-time permanent employment for 38 hours per week – contravention of s 50 of the Fair Work Act 2009 (Cth) INDUSTRIAL LAW – adverse action – allegation of adverse action in capping hours and changing start time – reverse onus of proof – where company made commercial decision to reduce labour costs – the exercise of workplace rights played no part in the capping of hours or change of start time INDUSTRIAL LAW – claim for compensation – calculation of quantum of compensation – interest on compensation INDUSTRIAL LAW – imposition of penalties – principles in determining penalties – penalties to be paid to the Applicant
Legislation: Conciliation and Arbitration Act 1904 (Cth) s 5(4) Evidence Act 1995 (Cth) s 140 Fair Work Act 2009 (Cth) ss 50, 191, 340, 341, 343, 345, 346, 355, 360, 361, 535, 545, 546, 557, 570 Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 43 Industrial Relations Act 1988 (Cth) Workplace Relations Act 1996 (Cth) s 353A Fair Work Regulations 2009 (Cth) regs 3.32, 3.33, 3.34, 3.42, 3.43 Industrial Relations Regulations (Cth) r 30B Workplace Relations Regulations 1996 (Cth) Pt 9A
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