Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: FLICK J
• Judgment Date: 25 October 2019
• Neutral Citation: [2019] FCA 1740
• Date: 25 October 2019

FEDERAL COURT OF AUSTRALIA

Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd
[2019] FCA 1740

File number:	NSD 1995 of 2018
Judge:	FLICK J
Date of judgment:	25 October 2019
Catchwords:	INDUSTRIAL LAW – accessorial liability – involvement in – aided or abetted contravention – knowingly involved – whether necessary to plead knowledge that persons employees ; PRACTICE AND PROCEDURE – application for summary judgment – need for caution – striking out of pleadings – the different principles applicable
Legislation:	Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 213, 224, 232 Fair Work Act 2009 (Cth) ss 30K, 323, 325, 550, 570 Federal Court of Australia Act 1976 (Cth) ss 31A, 43 Federal Court Rules 1979 (Cth) (repealed) O 11, r 16, O 20 Federal Court Rules 2011 (Cth) rr 16.21, 26.01 Trade Practices Act 1974 (Cth) ss 75B
Cases cited:	Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196 Australian Education Union v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1196, (2015) 239 FCR 461 BlueScope Steel Limited v Australian Workers’ Union [2018] FCA 1574 Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36, (2013) 248 CLR 619 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134, (2018) 360 ALR 261 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Priority Matters Pty Ltd [2017] FCA 833 Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920, (2008) 252 ALR 41 Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117, (2009) 178 FCR 401 Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451 Spencer v Commonwealth of Australia [2010] HCA 28, (2010) 241 CLR 118 Stefanovski v Digital Central Australia (Assets) Pty Ltd [2018] FCAFC 31, (2018) 368 ALR 607 Tytel Pty Ltd v Australian Telecommunications Commission (1988) 11 IPR 223 Whitby v ZG Operations Australia Pty Ltd (No 2) [2019] FCA 201 Yorke v Lucas (1985) 158 CLR 661
Date of hearing:	17 May 2019
Registry:	New South Wales
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	45
Counsel for the Applicant:	Ms L Saunders
Solicitor for the Applicant:	Australian Rail Tram and Bus Industry Union
Counsel for the Respondents:	Mr Y Shariff
Solicitor for the Respondents:	Seyfarth Shaw Australia

ORDERS

		NSD 1995 of 2018
BETWEEN:	AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION Applicant
AND:	RAILTRAIN PTY LTD First Respondent ; CHRISTOPHER ELSTON Second Respondent ; GRAHAM BUTLER Third Respondent ; JAE DRUCE Fourth Respondent

JUDGE:	FLICK J
DATE OF ORDER:	25 OCTOBER 2019

THE COURT ORDERS THAT:

1. The parties are to bring in Short Minutes of Order to give effect to these reasons within 14 days.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1. In the present proceeding, the Australian Rail, Tram and Bus Industry Union (the “Union”) filed an Originating Application and a Statement of Claim in October 2018. The Respondents to that proceeding were Railtrain Pty Ltd (“Railtrain”) as First Respondent and three individual Respondents. That Originating Application and Statement of Claim were amended in January 2019 and then further amended in April 2019.

2. As pleaded in the Further Amended Statement of Claim, Railtrain (inter alia) “operates a labour hire business supplying train crew and infrastructure operators to rail transport operators”. The Second Respondent (Mr Christopher Elston) is said to have been “from at least 2017 employed by Railtrain as its General Manager – People, Safety and Strategy”. The Third Respondent (Mr Graham Butler) is said to have been “at all material times an authorised representative of Railtrain”. The Fourth Respondent (Mr Jae Druce) is said to have been “at all material times employed by Railtrain as its Registered Training Organisation Manager”.

3. In very summary form, the April 2019 Further Amended Statement of Claim pleads that Railtrain contravened ss 323 and 325 of the Fair Work Act 2009 (Cth) (“Fair Work Act”). Messrs Elston, Butler and Druce, it is further pleaded, were “involved” in those contraventions by reason of s 550 of the Fair Work Act.

4. In January 2019, the Respondents filed an Interlocutory Application seeking (inter alia) to have parts of the then Amended Originating Application and Amended Statement of Claim dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court of Australia Act”) and r 26.01(1) of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”). In the alternative, orders were sought seeking that certain paragraphs of the pleadings be struck out pursuant to r 16.21(1) of the Federal Court Rules. The April 2019 amendments did not address the concerns of the Respondents and the Interlocutory Application was pressed as against the current pleadings. No further amendments were intended to be made by the Union.

5. The Interlocutory Application did not seek any order that the case as against Railtrain should be dismissed.

6. It is concluded that the criticisms of the pleadings advanced on behalf of the Respondent have largely been successful and that parts of the pleadings should thus be struck out. It is only the case against Railtrain which should thus proceed to hearing.

The Fair Work Act

7. Section 323 of the Fair Work Act provides as follows:

323 Method and frequency of payment

(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a) in full (except as provided by section 324); and

(b) in money by one, or a combination, of the methods referred to in subsection (2); and

(c) at least monthly.

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a) incentive‑based payments and bonuses;

(b) loadings;

(c) monetary allowances;

(d) overtime or penalty rates;

(e) leave payments.

(2) The methods are as follows:

(a) cash;

(b) cheque, money order, postal order or similar order, payable to the employee;

(c) the use of an electronic funds transfer system to credit an account held by the employee;

(d) a method authorised under a modern award or an enterprise agreement.

(3) Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money...