BUWA Transport Pty Ltd v Cleanaway Waste Management Limited

MacLaine Watson & Co Ltd v Department of Trade and Industry [1989] 3 All ER 523

McAleer v University of Western Australia (No 3) [2008] FCA 1490; (2008) 171 FCR 499

Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808

Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

CLEANAWAY WASTE MANAGEMENT LIMITED (ACN 000 164 938)

1. Pursuant to s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the applicants' application is summarily dismissed to the extent it involves claims made under ss 340(1), 346 and 350B(1) of the Fair Work Act 2009 (Cth) on the grounds that the applicants have no reasonable prospect of prosecuting that part of the proceeding.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. BUWA Transport Pty Ltd and D&T Transport Pty Ltd (the first and second applicants, respectively) contracted to provide services to Cleanaway Waste Management Limited (the first respondent). The two service providers are controlled by Mr Daniel Walsh (the third applicant). Mr Walsh and the service companies claim Cleanaway retaliated against the companies on account of Mr Walsh's activities in the workplace, including his activities as a union delegate. Mr Walsh and the two companies commenced proceedings against Cleanaway and one of its executives, Mr Paul Vella (the second respondent). The applicants allege contraventions of the Fair Work Act 2009 (Cth) (FW Act). The applicants filed a lengthy statement of claim detailing the contraventions by the respondents. The respondents have made an interlocutory application seeking summary judgment in respect of a number of those claims - specifically, the claims made pursuant to ss 340(1), 346 and 350B(1) of the FW Act.
2. The respondents argue the applicant companies are not entitled to avail themselves of the workplace rights in question. The applicants say recent amendments to the FW Act open up the possibility of the corporate applicants being able to sue for contravention of rights that were traditionally available to employees. The applicants say the dispute is sufficiently novel and complex that it should be resolved at trial. In the alternative, the applicants argue they should be given the opportunity to replead the statement of claim.

1. BUWA and D&T are companies that own and operate trucks. The companies each contracted separately with Cleanaway to provide a truck for use in Cleanaway's waste management business. The service contracts included a range of terms, including a requirement that each company provide a driver to operate its truck as directed. The contracts also include various standards that each of the service providers must meet. The contract with BUWA was reaching the end of its five‑year term in November 2024 when Cleanaway declined to enter a new arrangement with BUWA. Cleanaway has subsequently indicated its intention to end the relationship with D&T.
2. The applicant companies are both controlled by Mr Walsh. Mr Walsh also drove one of the trucks (and sometimes both). Mr Walsh says he was active in workplace affairs at Cleanaway. He served as a delegate of the Transport Workers' Union (the TWU). The applicants say Cleanaway's decision to terminate the service arrangements with both corporate applicants is an unlawful response to the exercise of workplace rights.
3. BUWA and Mr Walsh commenced these proceedings and made an unsuccessful interlocutory application to prevent Cleanaway from ending its relationship with BUWA: see BUWA Transport Pty Ltd v Cleanaway Waste Management Limited [2024] FedCFamC2G 1324. After the application for an injunction was refused, BUWA and Mr Walsh filed a statement of claim. They made the claims against Cleanaway and alleged Mr Vella was a person involved in Cleanaway's contraventions. D&T was also joined as an applicant when its relationship with Cleanaway came to an end.
4. The respondents have complained about the statement of claim. They sought particulars and invited the applicants to revisit the pleadings. The respondents have now made an application for summary judgment under s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCOA Act) and r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules) in relation to:

(a) the applicants' claim they have workplace rights protected under s 340(1) of the FW Act;

(b) the applicants' claim that BUWA was the subject of adverse action under s 346 of the FW Act because of Mr Walsh's industrial activity; and

(c) the applicants' claim there was unreasonable failure to deal with Mr Walsh amounting to contravention of s 350B(1) of the FW Act.

1. The Court's power to order summary judgment is found in s 143 of the FCFCOA Act. Section 143(2) permits the Court to give summary judgment in favour of a respondent in respect of all or part of a proceeding where "the Court is satisfied [the applicants have] no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding" [emphasis added]. (That expression is substantially repeated in r 13.13 of the Rules). Section 143(3) goes on to add by way of explanation:

...a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

1. The combined effect of sub-ss (2) and (3) creates a lower bar for a litigant seeking summary judgment compared to the standard which applied at common law. In Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118, Hayne, Crennan, Kiefel and Bell JJ said (at [52]) the statutory test in s 31A of the Federal Court Act 1976 (Cth) - which is in similar terms to s 143 of the FCFCOA Act - focused on:

...whether there is a "reasonable" prospect of prosecuting the proceeding, not ... whether a certain and concluded determination could be made that the proceeding would necessarily fail.

1. The plurality went on to insist the expression "no reasonable prospect" in the statute meant exactly what it said, explaining (at [58]):

No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided.

1. Having issued that warning, the plurality acknowledged (at [60]): "...it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly".
2. McKerracher J summarised the relevant principles in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 in the wake of the High Court's decision in Spencer. His Honour ventured at [29] "a reasonable prospect of success is one which is real, not fanciful or merely arguable". His Honour went on in the same paragraph to say:

...as a general principle, the moving party on an application for summary dismissal is likely to succeed if it is able to demonstrate to the Court that the applicant's success in the principal proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant's success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority...

1. While the summary judgment process is well-adapted to resolving disputes that turn on a straight-forward question of law, McKerracher J noted (at [29]) the authorities suggest the summary dismissal power may yet have utility where the legal issue is complex: see, for example, McAleer v University of Western Australia (No 3) [2008] FCA 1490; (2008) 171 FCR 499 at [39] per Siopis J; see also Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; (2008) 167 FCR 372 where Finkelstein J observed (at [23]):

On questions of law, the judge should conduct an inquiry into their merit, not for the purpose of resolving them (though this can be done - see Rosser v Austral Wine and Spirit Co Pty Ltd [1980] VicRp 33; [1980] VR 313, 320) and also not simply to determine whether the argument is hopeless, but in order to decide whether it is sufficiently strong to warrant a trial. If the judge is satisfied that he (or she) is able to resolve any contested legal issue at a summary hearing and without undue delay, it may be better all around if that be done. If not, then at least the merits must be tested. That will then give s 31A a substantial operation, which is what, it seems to me, was intended.

1. I accept this application focuses on questions of law that are complex, but that is not a barrier to dealing with them in circumstances where the parties have been able to make proper submissions. It is unclear what advantage there would be in effectively leaving these questions to be resolved at the final hearing if they can be conveniently and fairly addressed at this juncture before further costs have been incurred.

The applicants' claim they have workplace rights protected under s 340(1) of the FW Act

1. Section 340(1) prohibits a person from taking adverse action against another person for a prohibited reason - namely because the person has a workplace right, or because they have (or have not) exercised such a workplace right, or because they propose to (or propose not to) exercise one of those rights. The sub-section also prohibits adverse action taken against another person to prevent the exercise of a workplace right. The expression 'workplace right' is defined in s 341(1) as follows:

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment.

1. The applicants' statement of claim contends BUWA had workplace rights arising out of its service contract with Cleanaway (at [105]). The rights were said to include:

BUWA was entitled to the benefit of, or had a role or responsibility under, a workplace law or workplace instrument.

BUWA was able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument.

BUWA was able to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument.

1. D&T's workplace right arising under its service contract was said to include (at [106]):

D&T was able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument.

1. The statement of claim goes on to assert:
   • those workplace rights imposed corresponding obligations on Cleanaway (at [107]); and
   • BUWA and D&T received the benefit of those obligations, which included payments under the terms of the contracts (at [108]).
2. In February 2025, the respondents' solicitors wrote to the applicants' solicitors requesting further and better particulars of their claim. In particular, they asked for more details regarding the source of the 'workplace right' in question. Paragraph [13(vii)] of the applicants' response says "the 2019 BUWA Contract was recognised by a 'workplace law' specifically the Waste Management Award 2020". I understand D&T asserts a workplace right on the same basis.
3. The respondents say the applicants cannot possibly succeed in their claim that the respondents have contravened a 'workplace right' within the meaning of s 340(1) of the FW Act because the rights enumerated in the statement of claim (such as they are) arise under the service contracts. The respondents argue a service contract is not a 'workplace instrument' within the meaning of s 341(1) that is capable of generating a 'workplace right' protected under s 340. Section 12 defines the expression 'workplace instrument' as:

...an instrument that:

(a) is made under, or recognised by, a workplace law; and

(b) concerns the relationships between:

(i) employers and employees; or

(ii) digital labour platform operators and employee-like workers; or

(iii) road transport businesses and regulated road transport contractors; or

(iv) persons in a road transport contractual chain.

1. The respondents expressly deny that a service contract "is made under, or recognised by, a workplace law". Counsel for the respondents, Mr Fagir, pointed out the expression 'workplace law' is defined in s 12 to mean:

(a) this Act [ie, the FW Act]; or

(b) the Registered Organisations Act; or

(c) the Independent Contractors Act 2006; or

(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

1. Mr Fagir argues that definition does not include modern awards like the Waste Management Award 2020. He goes on to point out the Federal Court has previously accepted that an employment contract is not a workplace instrument recognised in the FW Act. In Barnett v Territory Insurance Office [2011] FCA 968; (2011) 196 FCR 116, Mansfield J explained (at [32]):

The definition of "workplace law" refers to enactments of a particular character. The specified enactments may give particular legal significance to an instrument or to a role adopted under an instrument. It is the status of the instrument or of the activity under an instrument to which attention is drawn by the particular "workplace law". The mere fact of the existence of a contract of employment does not enliven the relevant concept of recognition contained within the definition of "workplace instrument". If it were simply the existence of a contract of employment on which the particular enactment operated, the expression of "made under or recognised by" would have been unnecessary. It would have been easy to have indicated that s 340(1)(a) includes a right under a contract of employment. It is also more consistent with the grouping of "workplace law", "workplace instrument" and "order made by an industrial body" in s 341(1)(a) that the reference to recognition by a workplace law in the definition "workplace instrument" should refer to an instrument that is given legal effect or legal life by a provision of an enactment. Those three sources of the existence of a "workplace right" may be taken to have a common type of origin, or genus, in either an enactment or some formal process provided for by an enactment. That, too, is consistent with the genus in the "workplace law" definition, as (d) of that definition is confined to enactments as distinct from private contracts.

1. Mr Baroni, Counsel for the applicants, argued it was possible to distinguish Barnett because that case dealt with contracts of employment whereas this case involved service contracts between companies.
2. There is no reason apparent in the drafting of the definition in s 12 to think a service contract between companies would be recognised under the FW Act as a 'workplace instrument' when contracts of employment were not. To the extent the applicants argue the service contracts are recognised in the Waste Management Award 2020, which was created pursuant to the FW Act, the analysis in Barnett suggest I should reach the same result in this case: the mere fact the legislation or the award contemplates the existence of an employment or service contract does not of itself amount to recognition of the contract as that concept is defined.
3. In the absence of legislative change, the reasoning in Barnett is applicable in the circumstances of this case. Even if the service contract in question were contemplated in an award, that is not sufficient.
4. That brings me to the applicants' argument that there has been legislative change which may affect the interpretation suggested in Barnett. Mr Baroni pointed out the second limb of the definition of 'workplace instrument' in s 12 has been amended since Barnett was decided. The second limb formerly referred only to an instrument that "concerns the relationships between employers and employees". The second limb of the definition now includes express reference to "an instrument that concerns the relationship between...(iii) road transport businesses and regulated road transport contractors" and "(iv) persons in a road transport contractual chain". The amendments were made by the Fair Work Legislation Amendment (Closing Loopholes No 2) Act 2024 (Cth). Mr Baroni noted the explanatory memorandum which accompanied the amending legislation explained (at [1480]) the definition of 'workplace instrument' in s 12 was being altered so it extended some protections available under the FW Act beyond those involved in a traditional employer-employee relationship. He pointed out the explanatory memorandum said "[i]nstruments that concern these relationships would include MSOs [Minimum Standards Orders], MSGs [Minimum Standards Guidelines] and collective agreements" (at [1481]), although the explanatory memorandum does not expressly refer to an award or service contracts. Mr Baroni's written submissions say that does not matter because the service contracts in question are now recognised elsewhere in the Act as a consequence of the amendments.
5. Mr Baroni points out BUWA and D&T are both 'regulated road transport contractors' for the purposes of s 15Q of the FW Act, and that they are 'regulated workers' for the purposes of s 15G (as opposed to 'employee-like workers' in s 15P). He also says each of the companies involved is a 'road transport business' for the purposes of s 15R, and the parties are engaged in 'the road transport industry' as defined in s 15S. Mr Baroni pointed out the 'waste management industry' (as defined in the Waste Management Award 2020) is expressly identified in s 15S(1)(c) as being part of the 'road transport industry'. He also argues the relationships between BUWA and D&T on the one hand and Cleanaway on the other each qualify as a 'services contract' within the meaning of s 15H. If those service contracts are contracts for work performed in the 'road transport industry', Mr Baroni argues they are instruments recognised by the FW Act - and are therefore 'workplace instruments' in the relevant sense.
6. That does not resolve the issue at hand. The amendments to the second limb of the definition of 'workplace instrument' do not change the interpretation of the first limb of the definition. The first limb remains as it was when Barnett was decided, and employment relationships continue to feature in the second limb. While I can accept the amendments to the definition allow for non-employment relationships to be treated like employment relationships in some respects, Barnett makes clear that contracts of employment are not in and of themselves instruments.
7. Mansfield J acknowledged in Barnett that employment contracts were mentioned in the FW Act; indeed, the existence of an employment relationship was central to the operation of the FW Act because the legislation took the employment contract as a starting point. But Barnett makes clear that does not of itself mean employment contracts are recognised in the FW Act in the relevant sense. The fact 'services contracts' are identified and even defined in Pt 1-2, Div 3A of the FW Act does not mean they are recognised in the Act for the purposes of the definition of 'workplace instrument' in s 12 that might yield workplace rights. There is no basis for treating these other relationships mentioned in the second limb of the definition differently to employment relationships. Treating services contracts as 'workplace instruments' would put those seeking to exercise rights under those agreements in a more advantageous position than employees relying on a contract of employment that Barnett says cannot be regarded as a 'workplace instrument'. The text of the legislation and the explanatory memorandum do not suggest that outcome was intended.
8. In those circumstances, I am satisfied the claims in the statement of claim are misconceived to the extent they claim a contravention of a workplace right under s 340(1) that arises from the service contracts because those service contracts are not 'workplace instruments'.

BUWA's claim it was the subject of adverse action in contravention of s 346 of the FW Act because of Mr Walsh's industrial activity

1. BUWA's statement of claim pleads a contravention of s 346 of the FW Act. For the purposes of the discussion that follows, I will accept the factual premise of the allegation - namely, that Cleanaway did retaliate against BUWA on account of Mr Walsh's activities in the workplace, and on account of his membership of the TWU . There is no allegation that BUWA did anything itself.
2. Section 346 provides (relevantly):

A person must not take adverse action against another person because the other person:

(a) is or is not, or was or was not, an officer or member of an industrial association; or

(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); ...

1. Section 347 goes on to define what constitutes 'industrial activity' for the purposes of s 346. It focuses on various protected activities undertaken by that person. Cleanaway says it is important to note the focus in ss 346 and 347 is on the activities of the person leading to retaliation against that person. Cleanaway says Mr Walsh was the person who was engaged in the activities in question, and Mr Walsh was the union delegate - not BUWA, which was, in effect, a third party. Mr Fagir argued the text of s 346 does not extend protection to a third party against retaliation on account of the activities of someone else (in this case, Mr Walsh). While Mr Walsh is connected to BUWA because he is a member and officer with an economic interest, the two entities are legally distinct: see, generally, Salomon v Salomon & Co Ltd [1897] AC 22.
2. The existence of separate entities is a legal fact that has - and is generally intended to have - important legal and practical consequences. The underlying parties in this relationship have chosen to conduct the relationship and their respective businesses through corporate entities. One assumes they did so for good reasons. Those reasons typically include risk management and other benefits that make companies (even shelf-companies and incorporated self-traders, like Salomon & Co Ltd) an attractive option. Business-people cannot ask judges to ignore the fact of incorporation - to pierce the corporate veil and focus on 'the substance' - when it suits, but insist on the implications of adopting a corporate structure in other cases. As the renowned corporate law scholar, Professor Bruce Welling famously observed, "[t]ough corporations don't wear veils": Welling, B, Corporate Law in Canada: the Governing Principles (3 ed, Scribblers, Toronto, 1996) at p 114. Professor Welling explained:

Many 20th century judges liked corporate personality about as much as Gilbert and Sullivan did. They claimed authority to ignore it on numerous occasions. They always claimed they were 'lifting (or piercing) the corporate veil'. I can't see where they would get such a power; I deny that they had it. I deny that any judge has authority to pretend a corporation doesn't exist unless a statute specifically gives the judge that power.

1. Professor Welling's analysis is undoubtedly correct, and the approach he described has been affirmed repeatedly in the courts in the wake of the decision in Salomon: see, for example, MacLaine Watson & Co Ltd v Department of Trade and Industry [1989] 3 All ER 523. Yet Mr Baroni argues the text of the FW Act does not require or invite a distinction between the entities. As I understand the argument, the parliament clearly intended there be a focus on the substance of the relationships. Mr Baroni argues the use of independent contractors and the insertion of constitutional corporations should not distract from that legislative focus on the substance. Mr Baroni relies on s 338A of the FW Act, which was introduced as part of the same package of amendments addressed to the road transport industry that I already discussed. Section 338A says references in Part 3-1 "to an independent contractor includes a reference to a regulated worker". Mr Fagir points out the section has particular relevance to s 342 which defines 'adverse action'. The expression 'regulated worker' is defined in s 15G to include a 'regulated road transport contractor'. That expression is, in turn, defined in s 15Q(1)(a)(ii) to include an individual who is an officer of a body corporate that is a party to a services contract where that individual performs work under the contract. Mr Baroni argues these amendments make clear BUWA's status as a separate entity is not a barrier to claiming the protection contained in s 346.
2. I accept that, at least for some purposes, the FW Act may discard the distinction which otherwise flows from the existence of separate legal entities. But a perusal of the text of the amendments (including s 338A) does not make clear the FW Act applies to the respondents in the way the applicants contend under s 346.
3. Section 346 refers to a person taking adverse action against another person because of something the second-named person has done. Section 347 defines what it means to engage in industrial activity. BUWA was not at any stage an officer or member of an industrial association, and it has not engaged in (or proposed to engage in) industrial activity in the relevant sense. In other words, BUWA was not the second-named person in s 346 - which means the section does not protect it from retaliation, if indeed that is what occurred. The amendments cited by Mr Baroni do not on their terms modify the meaning of the text of ss 346 or 347. That means the protection contained in s 346 is not available to BUWA.
4. In those circumstances, I am satisfied the claims in the statement of claim are misconceived to the extent they seek protection under s 346 of the FW Act. It follows the claim must fail.

The applicants' claim there was unreasonable failure to deal with Mr Walsh in contravention of s 350B of the FW Act

1. Section 350B provides for protection of workplace delegates from reprisals in certain circumstances. In particular, s 350B(1) says an 'associated regulated business' must not (amongst other things) unreasonably fail or refuse to deal with the workplace delegate. Section 350B(5) makes clear the 'associated regulated business' for Mr Walsh:

...is the regulated business that:

(a) engaged the workplace delegate under a services contract; or

(b) arranged for, or facilitated entry into, the services contract under which the workplace delegate performs work.

1. The statement of claim does not suggest any failure to deal with Mr Walsh. It contends instead there was a refusal to deal (or continue dealing) with BUWA - an associate of Mr Walsh - because of Mr Walsh's activities and office. But s 350B does not protect against action directed to associates of the person who is the delegate. The section focuses on action taken by an 'associated regulated business' against the workplace delegate, which in this context would be an associate of Cleanaway targeting Mr Walsh. But there is nothing in the statement of claim to suggest that is what occurred.
2. The claim cannot be sustained as a matter of law.

Can the claim against Mr Vella be sustained if Cleanaway is not liable?

1. Cleanaway makes the simple point that Mr Vella, the Cleanaway executive, can only be held liable for involvement in Cleanaway's contraventions to the extent there were actually contraventions. For reasons I have explained, the claims against Cleanaway under ss 340, 346 and 350B of the FW Act cannot be sustained. It follows the claims against Mr Vella with respect to those contraventions are also unsustainable.
2. Cleanaway says it would be necessary for the applicants to replead the claims against Mr Vella because of the paucity of the detail in the statement of claim. I do not need to decide whether that would be appropriate in circumstances where I have concluded the claims against Mr Vella cannot be sustained in relation to the provisions in question here.

1. I am satisfied the applicants do not have reasonable prospects of successfully prosecuting the claims that were the subject of this interlocutory application when one has regard to the provisions of the legislation. I acknowledge the applicants' case involves potentially complex questions of statutory interpretation. It is certainly possible the applicants are correct; I cannot say the arguments are hopeless or bound to fail. But that is not the test, as s 143(3) of the FCFCOA Act explains. While acknowledging the power under s 143 must not be exercised lightly, the arguments with respect to the statutory interpretation point are sufficiently clear-cut that there is no point proceeding to trial on those claims. I should add this is not a case where the applicants could address the shortcomings by revisiting the pleadings. It is appropriate instead to draw a line under the claims in question. I would therefore give summary judgment to the respondents in relation to that part of the proceedings which alleges claims under ss 340, 346 and 350B of the FW Act.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.