Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Simpec Pty Ltd [2025] FCA 370

1. The applicant brought proceedings seeking relief on the basis that the leave entitlements of certain workers who had been employed by the respondent on the Iron Bridge Project had been incorrectly calculated. By its defence the respondent said that the claim could only be advanced on behalf of a Mr Cations. The respondent maintained that the entitlements of Mr Cations had been correctly calculated and advanced alternative claims of common mistake and estoppel by convention. It relied upon those alternative pleas to also support a claim that it was 'inappropriate' to award compensation to Mr Cations under the statutory provisions of the Fair Work Act 2009 (Cth).
2. At the commencement of the hearing the respondent formally stated that it did not maintain the claims of common mistake or estoppel. However, it sought to maintain the claim that it was 'inappropriate' to award compensation. I was of the view that there was difficulty with that course because the claim that compensation was 'inappropriate' simply relied upon the matters advanced to support the claims of common mistake and estoppel. I indicated that, in the absence of a formal application to amend, in my view the claim (as pleaded) that compensation was 'inappropriate' could not be maintained if the common mistake and estoppel claims were not pressed. In the result, the matter proceeded on the basis that it would be necessary for an amendment to be formulated as to the terms on which it was put that it was 'inappropriate' for the purposes of the statutory provision to award compensation. It was the position of the applicant that the respondent, having abandoned the claims of common mistake and estoppel could not maintain the claim concerning compensation being inappropriate.
3. At the conclusion of submissions, the respondent proposed an amendment to its defence. I gave oral reasons indicating that I would allow an amendment in more limited terms to those proposed. Those reasons follow.
4. These are my reasons on an application brought by the respondent to amend its defence in terms of a proposed further amended defence. The application is opposed on the basis of prejudice contended for by the applicant and on the basis that the amendment would open up matters that were not in issue in the way in which the case had been formulated previously.
5. It seems to me that there cannot be prejudice to the applicant in meeting a case that it is inappropriate to make orders for compensation under s 545 of the Fair Work Act in terms that would allow Mr Cations to retain any additional overtime payments that have been made on the basis that ordinary hours worked were 38 hours for each swing.
6. That is because a claim of that kind was expressed in paras 35 and 36 of the defence, and although the case was opened for the respondent on the basis that the claims of common mistake and estoppel were not pressed, it was indicated for the respondent that it would seek to maintain a submission in relation to what type of compensation orders would be appropriate for the purposes of s 545. Therefore, in my view the amendment can take effect in terms that do no more than maintain that which was already in issue on the case pleaded in the defence.
7. However, it seems to me that the terms in which the amendment is currently proposed do go beyond such a form of pleading. I will indicate what I consider to be a more limited form of pleading, which, if it were the subject of an application, I would be inclined to allow. It is an amendment in terms of the minute, but that para 36 would read in these terms, period (that is to say, the pleading would end with para 36):

It is inappropriate to award compensation to Mr Cations in the exercise of any discretion under section 545 of the Fair Work Act that does not provide for adjustments for the additional overtime payments received by Mr Cations on the assumption that all hours worked Monday to Friday in excess of 38 hours were treated as additional hours and paid at overtime rates across a three week on‑swing.

1. So that would mean, in effect, that the case as originally expressed in para 35 and picked up in para 36 of the original pleading is maintained, and it is, in effect, a claim that there should be some form of reflection in any order that the court makes as to compensation to provide for adjustments of that kind.
2. The respondent then moved for leave in the terms proposed and after hearing from the parties as to consequential orders I determined as follows.
3. In addition to the order for leave, there will be an order that on or before 11 April 2025, the applicant do file and serve any written submissions relating to the matters raised by para 36 of the further amended defence and I will make those written submissions of no more than five pages. And then I will provide that the respondent do file and serve any written submissions of no more than two and a half pages strictly in response.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.