Jess v Cooloola Milk Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 10 May 2022
• Neutral Citation: [2022] FCAFC 75
• Date: 10 May 2022
• Court: Full Federal Court (Australia)

Federal Court of Australia

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75

Appeal from:
File number:	QUD 254 of 2021
Judgment of:	RANGIAH, DOWNES AND MCELWAINE JJ
Date of judgment:	10 May 2022
Catchwords:	INDUSTRIAL LAW – appeal from a decision of the Federal Circuit Court of Australia – where primary judge held that the first and second respondents contravened s 535 of the Fair Work Act 2009 (Cth) and otherwise dismissed the application with no order imposing pecuniary penalties – whether the primary judge erred by not providing procedural fairness – whether the primary judge erred in concluding that applicant was a casual employee – whether the primary judge erred in finding that s 15A Fair Work Act 2009 (Cth) did not apply – where primary judge accepted evidence of witness but failed to address material evidence and arguments which, if accepted, could have led to rejection of that evidence – appeal allowed
Legislation:	Fair Work Act 2009 (Cth) ss 12, 15A, 86, 95, 106, 340, 341(1), 342, 345, 361, 386, 535, 545A(4), 546, 550, 570, Sch 1 cl 46 Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) Federal Court of Australia Act 1976 (Cth) s 28(1) Fair Work Regulations 2009 (Cth) reg 3.33(2) Road Transport and Distribution Award 2010 cl 27 Revised Explanatory Memorandum, Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020 Second Reading Speech, Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020
Cases cited:	ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 Alam v National Australia Bank Limited (2021) 393 ALR 629; [2021] FCAFC 178 Australian Building and Construction Commissioner v Parker (2017) 266 IR 340; [2017] FCA 564 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46; [2019] FCAFC 16 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 398 ALR 404; [2022] HCA 1 Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560; [2014] FCA 462 Continental Liqueurs Proprietary Limited v G F Heublein and Bro Incorporated [1960] HCA 37; (1960) 103 CLR 422 Day v SAS Trustee Corporation [2021] NSWCA 71 Dietrich v Dare (1980) 54 ALJR 388 DL v R (2018) 266 CLR 1; [2018] HCA 26 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1; [2002] VSCA 189 Gibbs v Mayor, Councillors and Citizens of City of Altona [1992] FCA 553; (1992) 37 FCR 216 Goodwin v Commissioner of Police [2010] NSWCA 239 Hamzy v Tricon International Restaurants (2001) 115 FCR 78; [2001] FCA 1589 Heiko Constructions v Tyson (2020) 282 FCR 297; [2020] FCAFC 208 Jess v Cooloola Milk Pty Ltd [2021] FCCA 1526 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Liddell Coal Operations Pty Limited v Hector [2021] NSWCA 47 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minogue v State of Victoria (2018) 264 CLR 252; [2018] HCA 27 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225; [2020] FCAFC 15 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Reliance Financial Services (NSW) Pty Ltd v Abdallah [2013] NSWCA 125 Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550; [2016] HCA 22 Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia (No 2) (2001) 110 IR 372; [2001] FCA 672 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40; [2018] FCAFC 203 Ward v Loumbos [2017] NSWCA 35 WorkPac Pty Ltd v Rossato (2020) 278 FCR 179; [2020] FCAFC 84 WorkPac Pty Ltd v Rossato (2021) 392 ALR 39; [2021] HCA 23 WorkPac Pty Ltd v Skene (2018) 264 FCR 536; [2018] FCAFC 131
Division:
Registry:
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	146
Date of last submissions:	25 February 2022
Date of hearing:	17 February 2022
Counsel for the Appellant:	Mr M Latham
Solicitor for the Appellant:	Anderson Gray Lawyers
Counsel for the Respondents:	Ms L Willson
Solicitor for the Respondents:	Employsure Law Pty Ltd

ORDERS

		QUD 254 of 2021
BETWEEN:	GREGORY JESS Appellant
AND:	COOLOOLA MILK PTY LTD (ACN 066 905 486) First Respondent ; RICHARD SCHRODER Second Respondent

order made by:	RANGIAH, DOWNES AND MCELWAINE JJ
DATE OF ORDER:	10 MAY 2022

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Orders 2 and 3 of the Federal Circuit Court of Australia of 7 July 2021 be set aside.

3. The matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for hearing and determination.

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

REASONS FOR JUDGMENT

RANGIAH AND DOWNES JJ:

1. We have had the considerable advantage of reading the judgment of McElwaine J in draft. We agree generally with his Honour’s reasons, except as to Grounds 4 and 13(a) of the Notice of Appeal. In our respectful opinion, those grounds should be upheld.

2. Ground 4 is expressed as follows:

4. The learned judge erred in finding that the First Respondent did not terminate the Appellant’s employment because of or for reasons which included the Complaint or Inquiry by failing to take into account the evidence of the Second Respondent that:

a. if not for his telephone conversation with the Appellant on 23 December 2018, the Appellant’s employment would not have been terminated;

b. following the Complaint or Inquiry, the Second Respondent thought to himself that if the Appellant considered he was worth more money he should pursue other employment; and

c. he was concerned that other employees would ask for more money if they became aware of the Compliant of [sic] Inquiry.

3. The ground is concerned with the primary judge’s conclusion that the respondents did not contravene s 340(1) of the Fair Work Act 2009 (Cth) (FW Act). That conclusion is also the subject of Ground 13(a), which is expressed as follows:

13. The learned judge erred by failing to find that the First Respondent contravened:

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