Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors [2015] HCATrans 193 (14 August 2015)

Last Updated: 17 August 2015

[2015] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P16 of 2015

B e t w e e n -

FAIR WORK OMBUDSMAN

Applicant

and

QUEST SOUTH PERTH HOLDINGS PTY LTD (ACN 109 989 531)

First Respondent

CONTRACTING SOLUTIONS PTY LTD (ACN 099 388 575)

Second Respondent

PAUL KONSTEK

Third Respondent

Application for special leave to appeal

FRENCH CJ
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 14 AUGUST 2015, AT 10.47 AM

Copyright in the High Court of Australia

MR J.L. BOURKE, SC: If the Court pleases, I appear with my learned friend, MS J.M. FIRKIN, for the applicant. (instructed by Clayton Utz)

FRENCH CJ: Yes.

MR BOURKE: If the Court pleases, the special leave question is this: can an employer avoid the sham contracting provision, section 357 of the Fair Work Act, by introducing a third party, such as a labour hire company as in this case, into the contractual arrangements between the employer and the person who is, in truth, the employee. The Full Federal Court concluded that you could. We say this narrow construction is wrong. One, it is not supported by the text of the section; two, is contrary to the purpose of the provisions and unless corrected will render this provision and, potentially, the other sham contracting provisions, easy to avoid. Can I go to - - -

FRENCH CJ: I wonder if we could just go to the question of the position of the respondent. Now, I think the position was there has been some discussion about whether you would undertake to pay the costs of the respondent, if the respondent were - it is Contracting Solutions. What is the endpoint state of play with respect to that discussion?

MR BOURKE: The endpoint is, we made that offer in the end, and they declined.

FRENCH CJ: They declined on the basis of - - -

MR BOURKE: Their last communications was, I think - - -

NETTLE J: They were prepared to take an offer of full costs, were they not, as a party, and you wanted to fund only as amicus curiae?

MR BOURKE: We took the view, at application book 210, paragraph 21, about line 15. The last communication we received from Contracting Solutions, they advised:

(a) The costs were not the issue; and

(b) Contracting Solutions did not consider that it could achieve anything as amicus curiae and it was not the beast it used to be.

We took the view that they were not a true contradictor as a party because they actually did not have an interest in the appeal any longer but, as indicated in our submissions, we are prepared to undertake as a condition, if leave is granted, to meet the reasonable costs of any counsel appointed by

the Court to act as amicus curiae on the hearing of any appeal or, alternatively, take on the arrangement of the appointment of counsel to act as amicus curiae on the hearing of any appeal.

FRENCH CJ: Well, while we are of the view that special leave should be granted in this case, Mr Bourke, we think the preferable approach is that it be on the undertaking that you pay their costs as a party.

MR BOURKE: If your Honour pleases.

FRENCH CJ: We do not need to get into nice arguments about their current status. They are prepared to participate on that basis.

MR BOURKE: Well, I am not 100 per cent sure, your Honour. If they do not, can we have in default that we will arrange for counsel to be appointed as amicus curiae to perform a contradictor role but we will, at first step, seek to - - -

FRENCH CJ: Well, you undertake to pay their costs as a party if they participate as a contradicting respondent and if they are not prepared to participate as a contradicting respondent, you undertake to fund the costs of counsel to appear as an amicus curiae in lieu of a contradictor.

MR BOURKE: Correct.

FRENCH CJ: Yes, all right, on that basis there will be a grant of special leave. I imagine it would be half a day to a day, certainly no more than a day.

MR BOURKE: I could not see it going beyond half a day.

FRENCH CJ: Yes. There is a timetable which will be made available to you for the filing of submissions. Of course, you will need to - if you end up appointing counsel as an amicus, they will have to comply with the submission timetable in the same way as the respondent.

MR BOURKE: If the Court pleases.

FRENCH CJ: All right. Thank you.

AT 10.53 AM THE MATTER WAS CONCLUDED