Jamsek v ZG Operations Australia Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 16 July 2020
• Neutral Citation: [2020] FCAFC 119
• Date: 16 July 2020

FEDERAL COURT OF AUSTRALIA

Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119

Appeal from:	Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934
File numbers:	NSD 495 of 2019
Judges:	PERRAM, WIGNEY AND ANDERSON JJ
Date of judgment:	16 July 2020
Catchwords:	INDUSTRIAL LAW – whether two truck drivers were employees for the purposes of the Fair Work Act 2009 (Cth) (FW Act) and the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act) – whether drivers were workers for the purposes of the Long Service Leave Act 1955 (NSW) (LSL Act) – assessment of the totality of working relationship – consideration of multi-factor test – drivers derived sole income working for same business for nearly 40 years – drivers were required to purchase a truck to retain work – drivers contracted with company through family partnerships – trucks were owned by family partnerships – drivers were required to be available to work during set hours – company logo was displayed on drivers’ trucks for majority of relevant period – company branding on drivers’ clothing – capacity of drivers to generate goodwill ; PRACTICE AND PROCEDURE – application for extension of time to file a notice of appeal – application lodged after costs judgment at first instance – consideration of length of, and explanation for, delay – consideration of prejudice to respondents and prospects of success of the appeal ; Held: appeal allowed – application for extension of time granted – truck drivers were employees for the purposes of the FW Act and SGA Act and workers for the purposes of the LSL Act
Legislation:	Fair Work Act 2009 (Cth) ss 11, 13, 44, 45, 87(1), 90(2), 96, 116, 118, 335, 342(1), 357, 550(2)(c) Federal Court of Australia Act 1976 (Cth) Div 2 of Pt III Long Service Leave Act 1955 (NSW) s 3(1) Superannuation Guarantee (Administration) Act 1992 (Cth) ss 12(1), 12(3) Federal Court Rules 2011 (Cth) r 36.03
Cases cited:	ACE Insurance Limited v Trifunovski [2013] FCAFC 3; 209 FCR 146 Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 Australian Air Express Pty Ltd v Langford [2005] NSWCA 96; 147 IR 240 Australian Mutual Provident Society v Allan (1978) 52 ALJR 407 Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 Australian Securities and Investments Commission v Kobelt [2018] HCA 19; 93 ALJR 743; 368 ALR 1 Autoclenz Ltd v Belcher [2011] UKSC 41; [2011] 4 All ER 745; [2011] ICR 1157 AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; 238 FCR 341 Barro Group Pty Ltd v Fraser [1985] VR 577 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 BVG17 v BVH17 [2019] FCAFC 17; 268 FCR 448 Climaze Holdings Pty Ltd v Dyson (1995) 13 WAR 487 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia [1931] HCA 53; 46 CLR 41 Commissioner of Taxation v Murry [1998] HCA 42; 193 CLR 605 Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2; 94 ALJR 182; 375 ALR 98 Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118 Eastern Van Services Pty Ltd v Victorian WorkCover Authority [2020] VSCA 154 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; 228 FCR 346 Fox v Percy [2003] HCA 22; 214 CLR 118 Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 Hallmark Construction Pty Ltd v Harford [2020] NSWCA 41 Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 House v The King [1936] HCA 40; 55 CLR 499 Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389 Jamsek v ZG Operations Australia Pty Ltd (Joinder Application) [2019] FCA 1332 Lee v Lee [2019] HCA 28; 93 ALJR 993; 372 ALR 383; 89 MVR 388 Marshall v Whittaker’s Building Supply Co [1963] HCA 26; 109 CLR 210 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Molfetas v Dwiar (1991) 33 AILR ¶266 Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597 Norbis v Norbis [1986] HCA 17; 161 CLR 513 Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) [2011] FCA 366; 214 FCR 82 Pratt v Australian Broadcasting Commission (1985) 10 FCR 297 Raftland Pty Ltd v Federal Commissioner of Taxation [2008] HCA 21; 238 CLR 516 Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179 Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679; 331 ALR 550 Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52; 184 FCR 448 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101 Tattsbet Limited v Morrow [2015] FCAFC 62; 233 FCR 46 Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 Warren v Coombes [1979] HCA 9; 142 CLR 531 Wesfarmers Federation Insurance Ltd v Stephen Wells trading as Wells Plumbing [2008] NSWCA 186 Whitby v ZG Operations Australia Pty Ltd (No 2) [2019] FCA 201 Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 WorkPac Pty Ltd v Rossato [2020] FCAFC 84 WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536
Date of hearing:	26 August 2019
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	260
Counsel for the Applicants:	Ms R Francois with Mr A Crossland and Ms K Hooper
Solicitor for the Applicants:	Watson Law
Counsel for the Respondents:	Mr R C Kenzie QC with Mr S Meehan
Solicitor for the Respondents:	Agnew Legal

ORDERS

		NSD 495 of 2019
BETWEEN:	MARTIN JAMSEK First Applicant ; DANIEL CIVTANOVIC AS TRUSTEE FOR THE BANKRUPT ESTATE OF ROBERT WILLIAM WHITBY Second Applicant ; STEPHEN HUNDY AS TRUSTEE FOR THE BANKRUPT ESTATE OF ROBERT WILLIAM WHITBY Third Applicant
AND:	ZG OPERATIONS AUSTRALIA PTY LIMITED ACN 060 142 501 First Respondent ; ZG LIGHTING AUSTRALIA PTY LIMITED ACN 002 281 601 Second Respondent

JUDGES:	PERRAM, WIGNEY AND ANDERSON JJ
DATE OF ORDER:	16 JULY 2020

THE COURT ORDERS THAT:

1. The orders made by the primary judge on 4 November 2018 in relation to the first applicant and Robert William Whitby are set aside.

2. The first applicant and Robert William Whitby were between about 25 August 1993 and about 1 October 2015 employees of the first respondent:

   1. within the meaning of s 335 and item 1 in the table at s 342(1) of the Fair Work Act 2009 (Cth); and

   2. for the purposes of s 12(1) of the Superannuation Guarantee (Administration) Act 1992 (Cth).

3. The first applicant and Robert William Whitby were between about 25 August 1993 and about 1 October 2015 employees of second respondent:

   1. within the meaning of s 335 and item 1 in the table at s 342(1) of the Fair Work Act 2009 (Cth); and

   2. for...