Cummins South Pacific Pty Ltd v Keenan

• Jurisdiction: Australia Federal only
• Judgment Date: 24 November 2020
• Neutral Citation: [2020] FCAFC 204
• Court: Full Federal Court (Australia)
• Date: 24 November 2020

Federal Court of Australia

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204

Appeal from:	Keenan v Cummins South Pacific Pty Ltd [2018] FCCA 2600
File number:	VID 254 of 2019
Judgment of:	BROMBERG, MORTIMER AND ANASTASSIOU JJ
Date of judgment:	24 November 2020
Catchwords:	INDUSTRIAL LAW – adverse action – appeal from Federal Circuit Court of Australia – whether respondent was dismissed in contravention of s 340(1) of Fair Work Act 2009 (Cth) (FW Act) – whether complaints were made within the meaning of s 341(1)(c)(ii) – whether respondent was “able to make” a complaint or inquiry – assessment of evidence by primary judge in relation to finding of breach of ss 340(1) and 352 of the FW Act – whether primary judge erred in finding that appellant had failed to rebut the statutory presumption in s 361 of the FW Act ; INDUSTRIAL LAW – long service leave entitlements under Long Service Leave Act 1992 (Vic) (LSL Act) – whether respondent was “continuously employed” by “one employer” in Victoria while employed by a related entity overseas – whether entitlement to long service leave requires a substantial connection to Victoria at all relevant times – entitlement to long service leave assessed at time of crystallising event – whether entitled to long service leave for an anterior period of time, in which there is no connection to Victoria, by operation of the LSL Act ; DISPOSITION – appeal allowed in part in relation to appeal grounds pertaining to ss 340(1) and 352 of FW Act – appeal dismissed in relation to appeal ground pertaining to LSL Act
Legislation:	Conciliation and Arbitration Act 1904 (Cth) Fair Work Act 2009 (Cth) Industrial Relations Act 1988 (Cth) Workplace Relations Act 1996 (Cth) Industrial Relations Act 1979 (Vic) Interpretation Act 1897 (NSW) Interpretation of Legislation Act 1984 (Vic) Long Service Leave Act 1955 (NSW) Long Service Leave Act 1992 (Vic) Fair Work Bill 2008
Cases cited:	APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 Australian Red Cross v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 Australian Timken Pty Ltd v Stone (No 2) [1971] AR (NSW) 246 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Branir Pty Limited v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Broken Hill South Ltd (Public Officer) v Commissioner of Taxation (NSW) (1937) 56 CLR 337 Cigarette & Giftware House Pty Ltd v Whelan (2019) 268 FCR 46 Cohen v iSoft Group [2012] FCA 1071 Cohen v iSOFT Group Pty Limited [2013] FCAFC 49 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 Flageul v WeDrive Pty Ltd [2020] FCA 1666 Fox v Percy (2003) 214 CLR 118 Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923 International Computers (Australia) Pty Ltd v Weaving [1981] 2 NSWLR 64 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Kodari Securities Pty Ltd v Tran [2020] FCAFC 164 Mackay v Dick (1881) 6 App Cas 251 Maric v Ericsson Australia Pty Ltd [2020] FCA 452 Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 SAS Trustee Corporation v Miles (2018) 265 CLR 137 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 Short v Ambulance Victoria [2015] FCAFC 55 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 The Environmental Group Ltd v Bowd [2019] FCA 951 Thiess v Collector of Customs (2014) 250 CLR 664 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534
Division:
Registry:
National Practice Area:
Number of paragraphs:	341
Date of hearing:	5 August 2019
Counsel for the Appellant:	Ms R Doyle SC with Mr J Forbes and Mr J Fetter
Solicitor for the Appellant:	Dentons
Counsel for the Respondent:	Mr C Gunst QC with Mr R Millar
Solicitor for the Respondent:	McDonald Murholme

ORDERS

		VID 254 of 2019
BETWEEN:	CUMMINS SOUTH PACIFIC PTY LTD (ACN 006 332 949) Appellant
AND:	ANDREW KEENAN Respondent

order made by:	BROMBERG, MORTIMER AND ANASTASSIOU JJ
DATE OF ORDER:	24 November 2020

THE COURT ORDERS THAT:

1. The appeal be allowed in part in respect of appeal grounds 3 – 9 and appeal ground 12.

2. Paragraphs 1, 2, 4, 5, 6, and 7 of the Order of the Federal Circuit Court of Australia dated 8 March 2019 be set aside.

3. The proceeding be referred for urgent mediation before a Registrar of the Court to be held on a date to be fixed.

4. Should the proceeding not be resolved at mediation, the proceeding be listed for a Case Management Hearing before the presiding judge on a date to be fixed.

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

REASONS FOR JUDGMENT

BROMBERG J:

INTRODUCTION

1. This appeal concerns an application made under the general protections provisions in Pt 3-1 of the Fair Work Act 2009 (Cth) (“FW Act”) by Andrew Keenan (“Mr Keenan”) against Cummins South Pacific Pty Ltd (“Cummins”).

2. Cummins is the Australian emanation of a multinational corporate group which is in the business of manufacturing diesel engines. Mr Keenan worked for Cummins and its related entities for approximately 34 years, first as an engineer and later as a member of Cummins’ senior managerial staff.

3. The principal allegation in Mr Keenan’s application was that six adverse actions, including his dismissal from employment with Cummins, had been taken against him because he made certain complaints...