King v Patrick Projects Pty Ltd

1. The applicants' application for leave to appeal be dismissed.
2. The applicants pay the costs of the respondents to be taxed, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 The first applicant's, Mr Daniel King's, employment with Patrick Projects Pty Ltd was terminated on about 30 April 2014. The employment of the other five applicants with Patrick Projects was terminated in March 2014. Together the six applicants are referred to as the applicants. 2 In April 2014, the applicants brought proceedings in the Fair Work Commission against Patrick Projects alleging its non-compliance with dispute resolution provisions contained in the Patrick Projects AMC Cargo Handling Agreement 2012-2015, that governed their employment (the application). 3 It appears that the applicants sought orders that Patrick Projects provide training, or payment in lieu of training, on the basis that the Agreement provided for such training. 4 Commissioner Cloghan at first instance in the Commission dismissed the application on the grounds that the Commission had no jurisdiction and that certain procedural steps required by the Agreement had not been complied with, but also on the basis that none of the applicants (apart from Mr King, whose employment had not then been terminated) were employees of Patrick Projects when they filed their application with the Commission. 5 Permission to appeal the Commissioner's decision was then refused by the Full Bench of the Commission, which, although it refused to extend time for the filing of the appeal application, went on to consider the merits of the proposed appeal and concluded that it lacked merit because the Commission had been correct in finding it had no jurisdiction upon well-established authority in relation to claims made under s 739 of the Fair Work Act 2009 (Cth). 6 The applicants, maintaining their grievances concerning their dismissal and in particular the failure of Patrick Projects to provide the training referred to in cl 12.4 of the AMC Cargo Handling Operations Memorandum of Understanding Deed, then commenced proceeding WAD 641 of 2015 in this Court in November 2015. 7 They joined as respondents both Patrick Projects, which had been the respondent in the Commission, as well as its parent company, Asciano Limited (together the respondents). 8 They sought relief, referred to in a little more detail below, which on one view sought to enforce the obligation undertaken by Patrick Projects in the Deed to provide them with training. 9 On the face of it, the applicants sought specific performance of that alleged obligation to be trained, even though it appears they accepted that their employment relationship with Patrick Projects had ended earlier in 2014. 10 The respondents then brought an interlocutory application to strike out the applicants' latest statement of claim and indeed to dismiss the proceedings entirely on the basis there was no viable cause of action. 11 The primary judge, having recited familiar authorities concerning the discretionary power of the Court under R 16.21(1)(e) of the Federal Court Rules 2011 (Cth) to strike out a pleading for failure to disclose a reasonable cause of action, considered that the pleading failed in that regard. 12 First, he found that the applicants did not have a maintainable cause of action against Asciano. He concluded on the materials before him, that the applicants were not employed by Asciano. A contention that, as a matter of substance, Asciano, as the parent company, should be considered the true employer of the applicants, and not Patrick Projects, plainly was rejected. His Honour noted that neither the Agreement nor the Deed engaged Asciano as a party. 13 Secondly, the primary judge considered that the applicants had no "standing" as they were no longer employed by Patrick Projects following the termination of their employment in 2014. His Honour said that Patrick Projects no longer had any ongoing obligations to the applicants in relation to training or any other employment related entitlement. 14 His Honour also considered that the Commission had decided similarly (except in regard to Mr King) in October 2014 in relation to the application brought by the applicants against Patrick Projects. 15 Additionally, his Honour considered that, by reason of those earlier proceedings and the bases upon which the proceedings in the Commission were dismissed, the maintenance of the proceeding in the Federal Court constituted an abuse of process. His Honour considered that the proceeding was a further attempt to relitigate the same matters as had been agitated in the Commission but dismissed. 16 As a result, his Honour not only struck out the statement of claim and the proceeding, but considered, in light of earlier opportunities given to replead a viable claim, that the applicants should not have a further opportunity to replead. His Honour said he could not discern any viable claim open to them. As a result he summarily dismissed the entire proceeding. 17 The applicants now seek leave to appeal the interlocutory judgment of the primary judge. 18 When the matter came on for hearing before me it became apparent that the applicants, including Mr King, did not dispute that their employment with Patrick Projects had been terminated in early 2014, at the times the primary judge had stated. 19 They said, however, they were not relying on the employment contract, or the terms of the Agreement, in maintaining the proceeding that the primary judge had dismissed. Rather, they said, they were suing only on the Deed and the obligation in cl 12.4 to provide the relevant training. They alleged that they were entitled to sue on the Deed as a separate legal instrument standing quite apart from the employment relationship. 20 The applicants submitted that the primary judge had failed to consider their application to the Court for relief in respect of the breach of the training term of the Deed in that light. Instead, the applicants submitted, the primary judge had conflated the question of the maintenance of the employment relationship with their independent entitlement to sue for breach of the Deed. 21 It should be noted that, while the applicants raised a number of other issues in their application for leave to appeal, it was this issue, being grounds 1 and 5 of the application, that they focused on in oral submissions at the hearing. 22 I should say at the outset, that the other grounds raised in the application are without substance. To the extent the grounds seek to challenge the respective decisions of the Commission, they fail to raise issues relevant to an application for leave to appeal from the primary judge's decision. Other grounds concerning how the primary judge determined the application before him are without merit, misunderstanding the judge's reasoning process. 23 It appears from the primary judge's reasonably succinct account of the issues and the reasons for dismissing the proceeding, that the express proposition put by the applicants - that the applicants are entitled to sue for breach of the training term of the Deed - was not expressly dismissed by his Honour. 24 However, it may reasonably be concluded that his Honour was not ignorant of the claim and may be taken to have found it wanting. I consider, by finding the applicants did not have "standing" to sue because Patrick Projects no longer had any continuing obligations to the applicants, his Honour, in effect, found the Deed had no continuing life of its own. 25 The Deed, which is dated 27 April 2012, is a deed made between Patrick Projects and the Maritime Union of Australia (MUA) in connection with all cargo handling operations at the Australian Maritime Complex (the AMC). The purpose of the Deed was to establish a framework that would provide a mutually beneficial "ongoing industrial relationship" between Patrick Projects, its employees and the MUA. See cl 2.1(i). 26 By cl 2.1(ii), the purpose of the Deed was also stated to reflect the basis of the industrial understanding between Patrick Projects and the MUA in relation to matters not specifically detailed in the Agreement. In the Deed, references to an earlier agreement were to be read as references to the Agreement as if the earlier agreement were continuing. 27 However, by cl 2.2, the Deed was stated to prevail over the earlier agreement to the extent of any specific inconsistencies. 28 The cargo handling work covered by the Deed was stated to consist of the handling of cargo on ships, barges, wharf areas, and designated quarantine areas associated with Patrick Projects' operations within the AMC. 29 The Deed began to operate on 29 April 2012 and was stated to "cease to operate when the Patrick Agreement ceases to operate". See cl 3.3. 30 The "Patrick Agreement" referred to in cl 3.3 is the Agreement as referred to above. 31 So far as the Agreement was concerned, it was expressed to bind Patrick Projects and its employees who were engaged to perform maritime cargo handling functions as defined in the Agreement, and the MUA. 32 It was stated by cl 7 to operate from the day of lodgement with Fair Work Australia "and shall remain in force until 30 June 2015". 33 Nothing further need be said by way of the content or other operative provisions of the Deed or the Agreement. It is plain enough that the Deed, having regard to these terms, did not have an independent operation that survived the cessation of the Agreement and the termination of the employment of the applicants at the AMC. It was to govern the performance of cargo handling functions during the currency of the Agreement and the employment of relevant employees. Once the employment of the applicants with Patrick Projects ceased, the Deed had no continuing operation in respect of their "employment". Further, the Deed has now ended. Plainly, there is no other continuing obligation under the Deed and to any of the applicants. 34 In the circumstances, the primary judge's finding to the effect that the applicants had no "standing" and that Patrick Projects no longer had any ongoing obligations to them in relation to training, or any other employment related entitlement, must be considered correct. Certainly, his Honour's findings in that regard cannot be said to be attended with that degree of doubt that justifies the Court granting leave to appeal. 35 Finally, there is no reason to doubt the correctness of his Honour's finding that Asciano was not liable to action by the applicants. On no reasonable view can it be concluded that Asciano was the employer in substance of the applicants at material times. 36 In these circumstances, the application for leave to appeal should be dismissed with costs.