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Monday, 21 November 2011
Page: 9118

Tertiary Education, Skills, Jobs and Workplace Relations

(Question No. 1267)


Senator Abetz asked the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, upon notice, on 5 October 2011:

Can the Minister confirm no judicial consideration has been given to sections 357 to 359 inclusive of the Fair Work Act 2009?


Senator Chris Evans: The answer to the honourable senator's question is as follows:

There has been some judicial consideration given to these provisions. My Department is aware that section 357 of the Fair Work Act 2009 (FW Act) has received judicial consideration in the following cases:

On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 (13 April 2011).

   - The Federal Court held that interpreters had been wrongly classified as independent contractors and had consequently been deprieved of the benefit of five years of employer superannuation contributions. The principal question in this case was whether On Call was an employer and the relevant interpreters were employees within the meaning of section 12 of the Superannuation Guarantee (Administration) Act 1992.

ABCC v Rapid Formwork Constructions Pty Ltd & Anor [2011] FMCA 649 (1 September 2011).

   - The Federal Magistrates Court held that RapidFormwork Constructions and its director breached section 357 of the FW Act when they misrepresented employment contracts as independent contracting arrangements to two young workers.

My Department is not aware of any judicial consideration of sections 358 and 359 of the FW Act.

My Department is aware that the provisions have also been referred to, but without substantial consideration being given to their meaning and effect, in:

Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 3) [2011] FCA 912 (11 August 2011); and

Australian Building and Construction Commissioner v Construction, Forestry, Mining & Energy Union [2011] FCA 1040 (7 September 2011).