C v Commonwealth of Australia [2015] FCAFC 113

C v Commonwealth of Australia [2015] FCAFC 113

C's enlistment in the RAAF did not create a contract of service and, by reason of the common law position preserved by the Defence legislation and reg 117, he was not an employee of the Commonwealth. The ordinary meaning of employee and employer in ss 335, 342 and 351 of the Fair Work Act 2009 (Cth) is the ordinary legal meaning founded on a contract of service, and the Act did not broaden that meaning to include enlisted Defence Force members. Accordingly C lacked the necessary status to bring the adverse action claim and had no reasonable prospect of successfully prosecuting the proceeding, so judgment should be entered for the Commonwealth.

Jurisdiction
Australia
Judgment Date
21 August 2015
Procedural Posture
Fair Work Adverse Action Proceeding; Application for Summary Judgment / Full Court Determination of the Respondent's Summary Judgment Application After Transfer From the Federal Circuit Court
Outcome
Judgment entered for the respondent; no order as to costs.
Legal Topics
['adverse Action' 'fair Work Act 2009 (cth)' 'meaning of Employee and Employer' 'australian Defence Force Enlistment' 'summary Judgment' 'standing']
['industrial Law' 'practice and Procedure'] ['adverse Action' 'fair Work Act 2009 (cth)' 'meaning of Employee and Employer' 'australian Defence Force Enlistment' 'summary Judgment' 'standing']

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Procedural Posture

Fair Work Adverse Action Proceeding; Application for Summary Judgment / Full Court Determination of the Respondent's Summary Judgment Application After Transfer From the Federal Circuit Court

Legal Issues

  1. 1 ['Whether enlisted members of the Australian Defence Force are employees within the meaning of ss 342 and 351 of the Fair Work Act 2009 (Cth).' 'Whether C was an employee or prospective employee and the Commonwealth was an employer or prospective employer for the purposes of the adverse action provisions.' 'Whether the proceeding had no reasonable prospect of success because C lacked the necessary status or standing to prosecute it.' 'Whether a foreshadowed amendment relying on Pt 6-4 of the Fair Work Act 2009 (Cth) would provide a viable cause of action.']

Ratio Decidendi

C's enlistment in the RAAF did not create a contract of service and, by reason of the common law position preserved by the Defence legislation and reg 117, he was not an employee of the Commonwealth. The ordinary meaning of employee and employer in ss 335, 342 and 351 of the Fair Work Act 2009 (Cth) is the ordinary legal meaning founded on a contract of service, and the Act did not broaden that meaning to include enlisted Defence Force members. Accordingly C lacked the necessary status to bring the adverse action claim and had no reasonable prospect of successfully prosecuting the proceeding, so judgment should be entered for the Commonwealth.

Court Disposition

Judgment entered for the respondent; no order as to costs.

Orders

  • ['Judgment be entered for the respondent.' 'There be no order as to costs.']