FEDERAL COURT OF AUSTRALIA

Martin v Fresho Foods Pty Ltd [2009] FCAFC 165

Workplace Relations Act 1996 (Cth) ss 581, 718, 719

SHELBY MARTIN v FRESHO FOODS PTY LTD (ACN 120 191 296)

QUD 93 of 2009

GRAY, EMMETT & GRAHAM JJ

13 NOVEMBER 2009

BRISBANE

THE COURT ORDERS THAT:

1.         The appeal be dismissed as incompetent. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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REASONS FOR JUDGMENT

GRAY J:

1                          I agree with Justice Emmett that the appeal should be dismissed as incompetent and I agree with the reasons expressed by his Honour.

Associate:

Dated:         24 November 2009

REASONS FOR JUDGMENT

EMMETT J:

2                          This purported appeal is concerned with the question of whether particular employees of the respondent, Fresho Foods Pty Ltd (the Employer), are covered by a particular Australian Pay and Classification Scale under the Workplace Relations Act 1996 (Cth) (the Workplace Relations Act).  The appellant, Mr Shelby Martin (the Inspector), is a Senior Workplace Inspector with the Workplace Ombudsman holding office under the Workplace Relations Act.  The Inspector commenced a proceeding under s 718 of the Workplace Relations Act in the Federal Magistrates Court seeking orders under s 719 of the Workplace Relations Act.  In the proceeding the Inspector claimed orders for the imposition of penalties on the Employer in respect of breaches of various instruments relating to employment of its employees.  The Inspector also claimed orders that the Employer pay to the employees amounts that had been unpaid. 

3                          On 27 January 2009 the Federal Magistrates Court made orders substantially as claimed by the inspector for the payment of underpayments to certain employees of the Employer.  On 13 March 2009 those orders were varied in a manner that is not presently relevant.  The Court also ordered on 13 March 2009 that the Employer pay a civil penalty in respect of the breaches of the Workplace Relations Act. However, the Federal Magistrates Court concluded that certain new employees of the Employer were not covered by the relevant Australian Pay and Classification Scale.  The Inspector is dissatisfied with that aspect of the orders made by the Federal Magistrates Court and now appeals to the Federal Court.  When the appeal was called on for hearing the Employer did not appear. 

4                          The notice of appeal filed by the inspector on 3 April 2009 purports to appeal from that part of the judgment of the Federal Magistrates Court whereby it was determined that the Australian Pay and Classification Scale applied only to those employees who were transferring employees within the meaning of s 581 of the Workplace Relations Act.  While orders were made in the Federal Magistrates Court on 27 January 2009 and 13 March 2009, no orders were made in relation to employees who were not transferring employees.  Insofar as employees, the subject of the original application, who were not transferring employees, the application has not yet been finally disposed of.  There is no order dealing with those employees and there was no order that the proceeding be otherwise dismissed.  The appeal as presently constituted, therefore, is incompetent.  The question is what should be done with the appeal.  As I have said, when the appeal was called on for hearing there was no appearance for the Employer, thus there would be no contradicter if the Court were to embark on a consideration of the legal question which would be raised had the Federal Magistrates Court finally disposed of the whole of the proceeding.

5                          It should be understood that the determination of the Federal Magistrates Court in the absence of orders does not have any precedential value even for other judges of the Federal Magistrates Court.  The appropriate course, therefore, is that the appeal be dismissed as incompetent.  However, in making such an order I should not be understood as either accepting or rejecting the view expressed by the Federal Magistrates Court in relation to those employees who are not transferring employees. 

Associate:

Dated:         24 November 2009

REASONS FOR JUDGMENT

GRAHAM J:

6                          I also agree.

Associate:

Dated:         24 November 2009