Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 3) [2013] FCA 734

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 3) [2013] FCA 734

The first respondent contravened s 358 of the Fair Work Act by threatening to dismiss an employee so as to re-engage her as an independent contractor; the third respondent was involved in this contravention within s 550. Applications against the second and fourth respondents and other declarations regarding the first and third respondents are dismissed.

Parties
Applicant: Fair Work Ombudsman; First Respondent: Quest South Perth Holdings Pty Ltd (ACN 109 989 531); Second Respondent: Contracting Solutions Pty Ltd (ACN 099 388 575); Third Respondent: Ashvin Luchmaya; Fourth Respondent: Paul Konstek
Jurisdiction
Australia
Judgment Date
26 July 2013
Procedural Posture
Civil / Final Declarations and Orders; Pending Determination of Penalties
Outcome
Application partially allowed; declarations made against first and third respondents, dismissed as to second and fourth respondents; orders for costs submissions and directions hearing regarding penalties.
Legal Topics
Sham Contracting, Contravention of Fair Work Act S 358, Involvement Under Fair Work Act S 550, Costs
Industrial Law Sham Contracting Contravention of Fair Work Act S 358 Involvement Under Fair Work Act S 550 Costs

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Parties

Fair Work Ombudsman

Applicant

Quest South Perth Holdings Pty Ltd (ACN 109 989 531)

First Respondent

Contracting Solutions Pty Ltd (ACN 099 388 575)

Second Respondent

Ashvin Luchmaya

Third Respondent

Paul Konstek

Fourth Respondent

Procedural Posture

Civil / Final Declarations and Orders; Pending Determination of Penalties

Legal Issues

  1. 1 Whether the first respondent contravened s 358 of the Fair Work Act by threatening to dismiss Jessica Buttrum-Virco to re-engage her as an independent contractor
  2. 2 Whether the third respondent was involved in the first respondent's contravention under s 550 of the Fair Work Act
  3. 3 Whether declarations should be made against the second and fourth respondents

Ratio Decidendi

The first respondent contravened s 358 of the Fair Work Act by threatening to dismiss an employee so as to re-engage her as an independent contractor; the third respondent was involved in this contravention within s 550. Applications against the second and fourth respondents and other declarations regarding the first and third respondents are dismissed.

Court Disposition

Application partially allowed; declarations made against first and third respondents, dismissed as to second and fourth respondents; orders for costs submissions and directions hearing regarding penalties.

Orders

  • The first respondent contravened s 358 of the Fair Work Act 2009 (Cth) by threatening to dismiss Jessica Buttrum-Virco to engage her as independent contractor.
  • The third respondent is taken to have also contravened s 358 of the FW Act by being involved in the contravention under s 550.