Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, BELL, GAGELER AND NETTLE JJ

FAIR WORK OMBUDSMAN APPELLANT

AND

QUEST SOUTH PERTH HOLDINGS PTY LTD & ORS RESPONDENTS

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45 2 December 2015 P38/2015

ORDER

1. Appeal allowed.

2. Set aside the order of the Full Court of the Federal Court of Australia made on 17 March 2015 and, in its place, order that:

(a) the appeal be allowed;

(b) the order of McKerracher J made on 26 July 2013 be varied so that, in addition to the declarations contained in paragraphs 1 and 2 of the order, the following declarations are made:

"2A. The first respondent contravened s 357 of the Act by representing to Ms Margaret Best that the contract of employment under which she was employed by the first respondent was a contract for services under which she performed work as an independent contractor";

"2B. The first respondent contravened s 357 of the Act by representing to Ms Carol Roden that the contract of

employment under which she was employed by the first respondent was a contract for services under which she performed work as an independent contractor"; and

(c) the proceeding be remitted to a judge of the Federal Court for further hearing to determine any pecuniary penalties to be imposed on the first respondent in respect of those contraventions.

On appeal from the Federal Court of Australia

Representation

J L Bourke QC with J M Firkin for the appellant (instructed by Clayton Utz)

No appearance for the first respondent

R C Kenzie QC with S E J Prince for the second respondent (instructed by Ashurst Australia)

Submitting appearance for the third respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd