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

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

The appeal was allowed in part: The primary judge erred in the assessment of evidence and application of the s 361 statutory presumption relating to prohibited reasons under Fair Work Act s 340(1) and s 352. These errors required that the relevant orders and declarations be set aside. However, the primary judge’s finding as to long service leave entitlement—including recognition of overseas service with a related body corporate—was not shown to be erroneous; therefore, that declaration stands unless varied on grounds not determined.

Jurisdiction
Australia
Judgment Date
24 November 2020
Procedural Posture
Appeal / Judgment of Federal Court of Australia Full Court
Outcome
Appeal allowed in part; orders and declarations made by the primary judge in relation to contraventions of ss 340(1) and 352 of the Fair Work Act set aside; declaration concerning long service leave entitlements affirmed.
Legal Topics
['adverse Action' 'workplace Rights' 'fair Work Act' 'long Service Leave' 'statutory Interpretation']
['employment Law' 'industrial Relations'] ['adverse Action' 'workplace Rights' 'fair Work Act' 'long Service Leave' 'statutory Interpretation']

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Procedural Posture

Appeal / Judgment of Federal Court of Australia Full Court

Legal Issues

  1. 1 ['Whether the respondent was dismissed in contravention of s 340(1) of Fair Work Act 2009 (Cth)' "Whether complaints by the respondent qualified as 'complaints' within s 341(1)(c)(ii)" "Whether the respondent was 'able to make' a complaint or inquiry under s 341(1)(c)(ii)" 'Whether primary judge erred in factual assessment and application of s 361 statutory presumption' 'Whether entitlement to long service leave includes service provided to related entity overseas under the Long Service Leave Act 1992 (Vic)']

Ratio Decidendi

The appeal was allowed in part: The primary judge erred in the assessment of evidence and application of the s 361 statutory presumption relating to prohibited reasons under Fair Work Act s 340(1) and s 352. These errors required that the relevant orders and declarations be set aside. However, the primary judge’s finding as to long service leave entitlement—including recognition of overseas service with a related body corporate—was not shown to be erroneous; therefore, that declaration stands unless varied on grounds not determined.

Court Disposition

Appeal allowed in part; orders and declarations made by the primary judge in relation to contraventions of ss 340(1) and 352 of the Fair Work Act set aside; declaration concerning long service leave entitlements affirmed.

Orders

  • ['Appeal allowed in part in respect of appeal grounds 3–9 and appeal ground 12.' 'Paragraphs 1, 2, 4, 5, 6, 7 of the Federal Circuit Court order dated 8 March 2019 set aside.' 'Proceeding referred for urgent mediation before a Registrar of the Court.' 'If not resolved at mediation, proceeding to be listed for Case...