Page 62 - Australian Defence Magazine September 2019

DEFENCE INDUSTRY
INSIGHTS
Case finds in favour of servicemen
SERVICEMEN, aggrieved that Austra- lia’s Defence Forces as their employer, have failed to meet contractual obligations owed to them, may now be able successfully to sue for compensation and damages thanks to a landmark case settled in May.
The breakthrough comes from a deci- sion of the NSW Court of Appeal (Searle v Commonwealth of Australia [2019] NSW- CA 127), which ruled that damages can be awarded to Marine Trainee Technicians, recruited into the Royal Australian Navy under a contract which the Navy made no serious effort to fulfil.
The lead plaintiff, Clayton Searle, was awarded $60,000 plus interest and costs in that case. Up to another 300 group members in the class action, are also now entitled to ac- cess similar compensation, according to Lev- itt Robinson senior partner, Stewart Levitt.
The unanimous, landmark Court of Ap-
peal decision sets a precedent that could be relied on by other military personnel who find themselves in a similar predicament. Searle and the other sailors alleged that the Navy had contracted with them, holding itself out as a Registered Training Organ- isation and as their “Employer”, to provide them with a Certificate IV in Engineering but failed to honour its contractual promises.
At the initial hearing, Justice Fagan in the NSW Supreme Court held that the Commonwealth could not have bound it- self by contract to the sailors because this would have been a “fetter” on the Navy’s “right of command” and could have given rise to operational interference.
However, Justice Fagan’s decision was overturned on appeal, and the Common- wealth has elected not to seek leave to ap- peal to the High Court, so the NSW Court of Appeal’s decision stands.
“Enlisted men and women do not have a right in civil law to sue the Commonwealth for things that happen in the ordinary course of their military service, and also do not enjoy the protection of the Fair Work Act,” Levitt said. “However, military per- sonnel can now sue the government for any- thing they contracted to do with Defence that was above or beyond their standard obligations as enlisted men and women, if Defence breaches their contract.
“The Navy held itself out to the Victorian State Government as an RTO, to obtain ben- efits available under a State Training Scheme but then left hundreds of sailors sitting idle,” he said. “From the enquiries we’ve received while this case has been running, there have been similar incidents in the Army and Air Force – not just the Navy – so there would be many people who could pursue their rights, if they are not time-barred.”
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A former Director General Training Army, BRIG Brewer referred to planning for next generation train- ing areas at Shoalwater Bay and a new training area
ken b scribythe NSetWwoDe
5th generation energy security • Singapore training in Qld
r e k f be nr i c d e g I e n s n a o c v a a d t i e o mn i a Australia-Singapore Military Training Initiative. and industry 2 Lessons learnt from this process could later also be An u u c s l t e r a a r l i a s u s b h s o : u A l d S P c o I n s i d e r 4 applied to investments in training areas in northern How to user-proof a military Australia anticipated as part of the US Force Posture vehicle 5
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“I think we need to ask ourselves whether our tradi- business 7 tional approach of heading out into the bush or flying BInrdoiagdesnpoeucstreunmgalgauenmcehnetsplan over it and training on areas that have fixed and field 8
firing ran
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