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

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