Kapmeyer v Damstra Mining Services Pty Ltd [2007] NSWLC 28

Local Court of New South Wales

CITATION: Kapmeyer v Damstra Mining Services Pty Ltd [2007] NSWLC 28 JURISDICTION: Civil PARTIES: Thomas Kapmeyer Damstra Mining Services Pty Ltd FILE NUMBER: 2290/07 PLACE OF HEARING: Downing Centre DATE OF DECISION: 08/17/2007 MAGISTRATE: Magsitrate B A Lulham CATCHWORDS: Contract - privity of contract - construction - which term can be implied - whether term of enterprise agreement implied in contract between employer/employee not parties to enterprise agreement LEGISLATION CITED: Toll v Alphapharm (2004) 219 CLR 164 CASES CITED: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Byrne v Australian Airline Ltd (1995) 185 CLR 410 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 42 Plaintiff's Counsel: Mr A.M. Slevin REPRESENTATION: Plaintiff's Solicitors: Morris Blackman Cashman Lawyers Defendant's Counsel: Mr S.R. Meehan Defendant's Solicitors: Blake Dawson Waldron ORDERS: Judgment for the defendant. Costs to follow the event.

BACKGROUND TO DISPUTE

1 Thomas Kapmeyer (plaintiff) was employed by Damstra Mining Services Pty Ltd (defendant) (hereinafter referred to as 'Damstra') from 18 July 2002 to 24 October 2003. Damstra provided labour to mine sites in the Hunter Valley. Mr Kapmeyer alleged that he was employed on the basis of an oral agreement reached in June 2002 which included a condition that if working at the Bulga open cut mine, he would be paid the same as the miners at Bulga. Mr Kapmeyer alleged that he wasn't paid his proper entitlements and claimed the sum of $10,284.43. The amount claimed was reduced to $6,354.11 following a payment by the defendant of $3,930.32. The hearing proceeded on the basis that no admission or inference of any kind was to be taken from such payment. Damstra alleged that the plaintiff was employed on the basis of a written offer of casual employment dated 18 July 2002, which Mr Kapmeyer signed on the same day. Damstra claimed that it had paid Mr Kapmeyer his entitlements pursuant to that agreement and he was not entitled to any additional payments. 2 Mr Kapmeyer, whilst employed by Damstra, worked at three Mines being the Bulga Open Cut Mine, the Ravensworth East Coal Mine and Narama Coal Mine. He worked predominantly at the Bulga Mine. The Bulga Surface Enterprise Agreement 2001 (Bulga Enterprise Agreement) applied from 6 June 2001 to 6 June 2003. The parties to the agreement were the Bulga Coal Management Pty Ltd (Bulga Coal) and the Construction Forestry Mining and Energy Union (CFMEU) and its members, who were employed by Bulga Coal. The Bulga Enterprise Agreement provided that employees of companies supplying supplementary labour were to be paid according to the rostered salary rate applicable to the roster on which he/she was engaged, plus some additional entitlements. 3 Mr Kapmeyer claimed that he was entitled to be paid when working at the Bulga Mine in accordance with Clause 25 of the Enterprise Agreement. The defendant argued that the only parties to the Enterprise Agreement were Bulga Coal and the members of the CFMEU, employed by the company at Bulga. The defendant argued that Clause 25 could not bind the plaintiff nor the defendant as they were not parties to the Agreement.