Birner v Aircraft Turnaround Engineering Pty Ltd
[2017] FCCA 852
•28 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIRNER v AIRCRAFT TURNAROUND ENGINEERING PTY LTD | [2017] FCCA 852 |
| Catchwords: INDUSTRIAL LAW – Application for the imposition of pecuniary penalties –whether employer was classified as “casual” or “full-time”. |
| Legislation: Fair Work Act 2009, ss.13, 14, 30C, 30D, 86 Airline Operations – Ground Staff Award 2010, cl.11.3, 11.5 |
| Cases cited: Hamzy v Tricon International Restaurants (2001) 115 FCR 79 Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 |
| Applicant: | ROBERT BIRNER |
| Respondent: | AIRCRAFT TURNAROUND ENGINEERING PTY LTD |
| File Number: | BRG 864 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 20 July 2016 |
| Date of Last Submission: | 20 July 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 28 April 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Johnsson QC |
| Solicitors for the Respondent: | Peters Bosel Lawyers |
ORDERS
The application filed on 17 September, 2015 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
BRG 864 of 2015
| ROBERT BIRNER |
Applicant
And
| AIRCRAFT TURNAROUND ENGINEERING PTY LTD |
Respondent
REASONS FOR JUDGMENT
Mr Birner is a licensed aircraft maintenance engineer. Since as long ago as 2003 he has, from time to time, worked for the respondent Aircraft Turnaround Engineering Pty Ltd. These proceedings concern Mr Birner’s latest employment with Aircraft Turnaround Engineering which commenced on 1 March, 2010. Mr Birner is still employed by the respondent.
The dispute centres upon the nature of Mr Birner’s employment. He asserts that he was at times relevant to these proceedings a full-time employee of the respondent and that he was entitled to payment for a full-time working week, even though his employer did not make work available to him for the whole of each week. He also claims for what is said to be unpaid annual leave and loading upon that annual leave. He alleges that the respondent has breached the Fair Work Act 2009 (Cth) in certain respects and he seeks the imposition of a pecuniary penalty on the respondent in respect of those contraventions.
The respondent denies Mr Birner’s claims. It says that he was a casual employee who was paid the appropriate casual rate and that nothing at all is now due to Mr Birner.
For the reasons that follow, I have concluded that Mr Birner was a casual employee and that he was paid all that he was entitled to be paid. Consequently his application must be dismissed.
Background and findings of fact
Edward Deeb has been the managing director of Aircraft Turnaround since 1 November, 1993 when the company was first incorporated. Mr Deeb gave evidence in these proceedings by way of affidavit. He was cross-examined by Mr Birner.
Timothy Bowles was, for a period, a director of the respondent. He has been at all times relevant to this proceeding and still is a shareholder of the respondent. Mr Bowles gave evidence by way of affidavit.
The respondent provides ground service engineering maintenance and other aircraft turnaround services including baggage handling to various small and medium sized airlines at Cairns airport. The ground service engineering maintenance is generally performed by licenced aircraft maintenance engineers, aircraft maintenance engineers and trades assistants. When undertaking the maintenance, a licenced aircraft maintenance engineer is ultimately responsible for certifying that the work is compliant with relevant civil aviation laws and regulations.
Mr Birner commenced as a licensed aircraft maintenance engineer with Aircraft Turnaround in early December, 2003. He was initially employed on a casual basis. He took a three month leave of absence in 2004 to improve his qualifications and then returned to his employment with the respondent. There is a dispute about the basis upon which he was employed when he returned with his improved qualifications in early 2005. Mr Birner says that it was as a permanent employee and Mr Deeb contends that it was “most unlikely” he was a permanent employee. I tend to think that he was a casual employee because on 28 October, 2005 Mr Birner signed a Tax File Number Declaration for the Australian Taxation Office in which he certified that he was a casual employee. I do not accept his explanation that another employee of the respondent filled out the form after he had signed it. He signed it and by doing so declared that the information in that section of the form to which his declaration applied was true and correct. I do not accept that the section of the form to be completed by Mr Birner was not fully filled out when he signed it because his declaration was to the effect that the information was true. I do not expect that he would have declared the information to be true if it was not complete.
In January, 2006 Mr Birner applied for annual leave. I accept that when he did so Mr Deeb told him that he could not take leave because he was a casual employee. I accept that from around this time Mr Deeb and Mr Bowles (who was at that time a director of the respondent) began to send Mr Birner home before the finish time in his roster. If he protested about this, I accept that they would say words to the effect of “you are a casual, we can do what we like” and “if you don’t like it, you should leave”.
Mr Birner took their advice. In March, 2006 he resigned his employment with the respondent and went to work in Papua New Guinea. However, his departure from Cairns did not last long. Mr Birner’s family was in Cairns and after a visit from Mr Bowles to Mr Birner’s wife during which the prospect of permanent employment was discussed with her, Mr Birner returned to Cairns. In June, 2006 he re-commenced working for the respondent on a casual basis. Mr Deeb suggests that Mr Birner did not return until June, 2007 but I think he is mistaken about that.
Mr Birner undertook a further training course in early 2008 and became certified on a particular type of aircraft described as the Dash-8 Q400. Mr Deed told him that if he did that he would be given full-time employment. However, to obtain the relevant licences required Mr Birner to undertake both training and a schedule of experience. Whilst he completed the training in 2008, it took some further years to complete the experience requirements.
On 15 April, 2008 Mr Birner was given a full-time employment contract. The arrangement was confirmed in a letter signed by Mr Birner and Mr Deeb. Its terms were as follows:
The following is a review of your employment within Aircraft Turnaround Engineering; this is an offer under the following conditions. Changes are to commence as soon as possible with both agreeing to the terms below.
·$80 000 per annum;
·Overtime will be paid for rostered days off & extra shift hours or work, at $50.00 per hour
·Call in rates will be paid at $50.00 per hour for a minimum four hours
·Annual Leave will allow 5 weeks paid leave & 1week sick leave paid out every twelve months
·A rotating roster of four on four off - 10 hour shifts
·Superannuation to be paid quartile
·Three year term with two year option, reviewed every six months
This offer is strictly on condition of the approval of QantasLink Brisbane and the continue line maintenance support of Sunstate Airlines Aircraft at Cairns airport by The respondent P/L acceptance by both parties signature accepting all the above terms.
In circumstances which are now contentious between the parties, Mr Birner’s employment was changed to casual by the respondent on 25 November, 2008. On that day, Mr Deeb wrote to Mr Birner in the following terms:
As a result of recent events in the work place a decision has been made by the Management team to return you to Casual employment and your remuneration will be by way of hours worked and those hours reflected on the time clock, overtime will be paid after the tenth hour worked and 4hr call in will be honoured. This will take effect on your return from leave on the 15th December 2008.
This decision was not taken lightly however, it was highlighted by your decision to leave early on the evenings of the 21st and 24th of this month leaving the Brisbane based engineer here with only TA’s to assist this was fed back to Qantaslink in Brisbane and we were consequently asked to explain. As a reminder to you Qantaslink pay us to provide LAME coverage until 2130 daily, your choice to leave the workplace has caused considerable embarrassment to the respondent.
Further to this you initially agreed to work 10 hour days, for example in the past 30 days, 13 Oct to 09 Nov you were rostered to work 150 hours, you worked 110.75 in addition to this you had 2 paid days sick leave and one day annual leave, we find this is unacceptable work performance and this added weight to our decision to return you to casual employment.
In effect, that was a termination of Mr Birner’s employment and an offer to re-employ him on a casual basis as set out in that letter. Unless Mr Birner agreed to the change in his employment terms and conditions, such a change could not be imposed unilaterally by the respondent.
Mr Birner did not accept the change in status. On or about 11 December, 2008 Mr Birner gave a letter of resignation to the respondent which noted that his resignation would be effective from 25 December, 2008.
However, despite apparently resigning his employment, Mr Birner continued to work for the respondent on an ad hoc basis until August, 2009. He looked for other work and also worked for another employer during that period. Mr Deeb gave Mr Birner a written reference to assist with his further employment opportunities.
In August, 2009 Mr Birner took up a position with another employer working in Papua New Guinea. That alternative employment did not, apparently, commend itself to Mr Birner. He returned to Australia in January, 2010 and subsequently decided in February, 2010 not to return. Mr Birner made telephone contact with Mr Deeb in February, 2010 whilst Mr Deeb was overseas. Mr Birner asked about the possibility of further employment with the respondent. Mr Birner claims that Mr Deeb said that there was work available and that Mr Birner would be put on the rosters and would start in March, 2010.
Mr Deeb’s evidence is that he asked Mr Birner to contact Mr Bowles and that subsequently on or about 22 February, 2010 he convened a meeting in the respondent’s training room with Mr Birner, Mr Bowles and himself. Mr Bowles’ evidence on this point was not helpful. He could recall that there was some discussion with Mr Birner and Mr Deeb, but had no recollection of where or when it occurred.
Mr Deeb’s evidence is that during the meeting he said to Mr Birner words to the effect: “We can offer you some casual work if you are interested in that. At this stage we have two weekend days we can offer you. We can pay you $45 per hour.” Mr Deeb says that Mr Birner responded with words to the effect of, “yes, okay”. Mr Birner says that there was no such meeting and that he was at home with his wife and their three day old daughter awaiting the arrival of a nurse.
I prefer the evidence of Mr Deeb that there was such a meeting. It may not have occurred precisely on 22 February, 2010, but I am satisfied that there was a meeting between Mr Birner, Mr Bowles and Mr Deeb as Mr Deeb suggests. I am satisfied that Mr Deeb made an offer of casual employment at the rate of $45.00 per hour for that work. I am satisfied, and I find on the balance of probabilities, that Mr Birner accepted that offer. That is consistent with Mr Birner’s evidence in his affidavit filed on 21 April, 2016 that: “I was only informed that I would be paid $45 per hour …”
At this point it is necessary to say something of the way in which Mr Birner knew when he was to work. I accept that ever since he has been employed with the respondent the hours which he would work would be set out in a roster which was available to him one month at a time, seven or so days in advance. The rosters were arranged over a seven day block with there being five working days and two days off.
Mr Birner swears that if he was unable to attend work on a day on which he had been rostered he was expected to advise his manager well in advance to rearrange his roster. He provided medical certificates when he was sick.
Mr Deeb swears that all casual staff were at liberty to reject rostered shifts. His evidence is that on average, approximately three casual employees reject a shift each month. If a casual employee rejects a rostered shift, they are not paid for that shift. Further, casual staff are not required to complete a leave application form in relation to the rejected shifts. Mr Birner took the opportunity to file a written response to Mr Deeb’s evidence. He took no issue with this evidence. I accept it.
Mr Bowles also gave evidence about the rostering arrangements. He was responsible for preparing the roster after Mr Birner recommenced his employment in March, 2010. He says that due to the workload and staffing levels at that time, he could only roster Mr Birner on weekend shifts.
Mr Bowles swears that on about 1 May, 2010 Mr Deeb approached him and said to me words to the effect: “Robert is to be given 40 hours per week if possible”. Mr Bowles vaguely recalls Mr Deeb mentioning something about a loan application as the reason for the direction but he cannot specifically recall the words used by Mr Deeb.
Mr Bowles retained control over Mr Birner’s roster and could vary his rostered shifts to reflect any change in customer requirements, despite the direction he was given by Mr Deeb. Mr Bowles rostered Mr Birner for 40 hours per week where the work was available, but that was not guaranteed and was always subject to workloads and flight times.
Mr Bowles swears that within a short number of months after receiving the direction from Mr Deeb, he had moved another employee from a day shit to a night shift and consequently there was an available regular day shift which he subsequently allocated to Mr Birner. The shift was 5:30am to 1:30pm, Monday to Friday. That meant that Mr Birner was paid for approximately 40 hours per week when working that entire rostered shift.
However, according to Mr Bowles on occasions Mr Birner was rostered to work less than 40 hours, but never more than 40 hours. Mr Bowles swears that he rarely changed Mr Birner’s rostered shifts from month to month and due to the regular rostering, Mr Birner’s income stayed around the same amount each pay period.
Mr Bowles recalls at least two occasions between 1 March, 2010 and approximately 2011/2012 when he no longer completed the rosters that Mr Birner was unable to work rostered shifts. On those occasions Mr Birner did not tell Mr Bowles the reason he could not work the shifts. Mr Bowles did not expect an explanation because he considered he was a casual employee. He did not ask Mr Birner to complete a leave form and Mr Birner was not paid for those shifts.
Mr Birner did not challenge any of the above evidence from Mr Bowles. I accept it.
Mr Deeb swore that on many occasions, it has been necessary for casual employees to finish work prior to the end of their rostered shift due to all work being completed. On some occasions, even where all work has not been completed, casual employees clock off prior to the end of their rostered shift without authority. Mr Birner took no issue with that evidence.
Mr Birner recommenced his employment on 1 March, 2010. When he did so, he enquired of Mr Deeb as to whether he would need to fill in “new tax forms”, but was told that there was no need to do so. Mr Deeb says that he told Mr Birner to “go and see Chloe”.
Chloe Ducksbury gave evidence in these proceedings. She has been employed in the position of administration manager with the respondent since 26 June, 2008. She is responsible for all administrative functions, including payroll. In her work, she draws a distinction between the respondent’s employees based upon their employment status and refers to them as either “salaried” or “casual”. She takes direction from Mr Deeb as to whether a new employee is a casual employee or a salaried employee. She is responsible for “inputting” a new employee into the respondent’s payroll system and she checks a new employee’s employment status with Mr Deeb so that she has the pay rates and the like correct. I accept her evidence about those matters.
Ms Ducksbury gave evidence that on about 1 March, 2010 she was sitting at her desk when Mr Deeb approached her and said words to the effect: “Birner is starting back with us as a casual employee”. From that point she conducted the payroll and record keeping on the basis that Mr Birner was a casual employee.
Mr Birner’s evidence in his affidavit filed on 20 November, 2015 is that “due to the uncertainty of my employment with the Respondent in the past, I requested the Respondent provide me with something in writing which set out the terms of my employment.” In his affidavit filed on 21 April, 2016 his evidence is that: “Upon my employment I requested Edward Deeb, The Managing Director of the Respondent provide me with something in writing which set out the terms of my employment and Edward Deeb had stated that he would”. Mr Birner does not suggest that there was any delay in him receiving the letter that he asked for from Mr Deeb. That suggests that the request was made at about the time the letter was written – sometime after Mr Birner recommenced his employment.
Ms Ducksbury gave evidence that on or about 6 May, 2010 Mr Birner said to her words to the effect: “I am looking at buying a property in Edge Hill. Can I get a letter from Ed confirming my status so I can apply for a home loan”. This statement reported by Ms Ducksbury is not necessarily inconsistent with Mr Birner’s reported reason for requesting a letter that confirmed his employment. I accept that Mr Birner approached Ms Ducksbury for a letter about his employment as she suggests.
Ms Ducksbury told Mr Birner that she would check with Mr Deeb and get back to him. She went and saw Mr Deeb. I accept that she said words to the effect: “Rob needs a letter for the bank as he is applying for a home loan. What do you want me to write?”
Ms Ducksbury says that Mr Deeb dictated a letter to her. She prepared the letter according to Mr Deeb’s instruction. This letter, dated 6 May, 2010 is one of the foci of this case. I will return to its terms shortly. Ms Ducksbury’s evidence is that while she was in the process of typing the letter, she checked the respondent’s computer based payroll system to identify that Mr Birner was working approximately 40 hours per week at that time.
Mr Deeb’s evidence is a little different to that of Ms Ducksbury. He says that on or about 6 May, 2010 Ms Ducksbury entered his office and said words to the effect: “Rob wants this reference to give to the bank”. He responded with words to the effect: “What does he want it for?” Ms Ducksbury then said words to the effect: “It is to assist him in obtaining a mortgage”.
Mr Deeb says that Ms Ducksbury handed him a letter which was dated 6 May, 2010 and which had been typed on the respondent’s letterhead. Mr Deeb said to Ms Ducksbury words to the effect: “Alright, okay” and he then signed the letter and handed it back to Ms Ducksbury.
I do not think that anything turns on the difference between Ms Ducksbury’s evidence and Mr Deeb’s evidence, but if it was necessary to choose between the versions I prefer the evidence of Ms Ducksbury over that of Mr Deeb. I think it unlikely that she would have constructed the letter herself without some instruction or authorisation from Mr Deeb to do so. It is likely, I think, that Mr Deeb told Ms Ducksbury what to record in the letter.
Mr Birner’s evidence is that he provided the letter to a financier, although not until sometime later – in October, 2010.
The letter of 6 May, 2010 is in the following terms:
06th May 2010
Mr Robert Birner
1/16 McManus StWhitfield QLD 4870
Re. Employment Offer
Dear Mr Birner,
It is my pleasure to extend the following offer of employment to you on behalf of Aircraft Turnaround Engineering. You will be employed on a Casual full time basis.
Title: LAME – Licenced Airframe Maintenance Engineer
Hours: 40 hrs a week – 80 hrs a fortnight
Base Salary: Is $93,600.00; Paid in fortnightly instalments, which is equivalent to $45.00 an hour. In addition of possible overtime.
Start Date: 1st March 2010
Robert has been previously been employed as a LAME and this commencement was on the 20th of June 2005.
You acknowledge that this offer letter, represents the entire agreement between you and Aircraft Turnaround Engineering.
Yours Sincerely
[Signature appears] [Signature appears]
----------------------
Edward Deeb
DirectorThe respondent
On the strength of that document, Mr Birner claims that he is entitled to certainty as to the number of hours he is required to work each week, and that he is employed on fixed, full-time hours by the respondent.
Mr Birner became concerned at what he perceived to be the failure of the respondent to give him the amount of work to which he was entitled or to pay him correctly. He engaged lawyers and on 16 November, 2011 they wrote to the respondent demanding $49,692.60 for underpayment of wages up to 16 November, 2011.
Following the letter of demand, Mr Deeb and Mr Bowles for the respondent and Mr Birner met on 24 November, 2011 to discuss Mr Birner’s demand. Mr Bowles has no useful recollection of the meeting. Mr Deeb and Mr Birner give differing accounts. Mr Birner says that:
a)he was advised by Mr Deeb words to the effect that “roster cuts would take place if I proceeded with legal action”;
b)he was also advised by Mr Deeb that he was not entitled to long service leave at that time because he had left the company;
c)Mr Deeb said that a contract would be drawn up within two to four weeks (although for what purposes is not stated);
d)however, Mr Deeb asked Mr Birner to prepare a contract for him to look at; and
e)Mr Deeb then said that the respondent would adhere to the terms in the letter of 6 May, 2010 providing him with 80 hours per fortnight and remunerating him accordingly.
Mr Deeb says that during the meeting, he said to Mr Birner:
a)the respondent could only continue to offer him casual work but would give him as many hours as possible in the circumstances;
b)he was not entitled to annual leave because he was a casual;
c)after Mr Birner asked: “How am I going to take my family on holidays?” Mr Deeb said that after a twelve month period, if Mr Birner gave good service, the respondent could offer him a bonus of one week as a holiday or as a bonus; and
d)if the respondent was successful at securing a long term contract with QantasLink, there might be a possibility of full time work but if Mr Birner wanted more money he needed to get his Q400 Airframe Licence as soon as possible and that would increase his hourly rate.
It is significant, I think, that in his affidavit filed on 20 November, 2015 Mr Birner says that he cannot recall if Mr Deeb spoke about being offered leave as a bonus or that his employment would be casual.
Mr Deeb says that he did not mention an employment agreement at any time during the 24 November, 2011 meeting.
On 30 November, 2011 Mr Birner sent Mr Deeb an email in which he said:
In line with our conversation in the meeting room on Thursday, 24th November, 2011 I have attached the existing Agreement for your infor, and also a draft Agreement with changes to help facilitate your offer of transfer as soon as possible.
(errors in the original)
That Mr Birner sent such an email is consistent with there being conversation at the meeting about the preparation of another employment contract. In turn, that is consistent with the then present contract (the terms of which were recorded in the letter of 6 May, 2010) being inconsistent with Mr Birner’s claim that he was a full-time employee. The proposed contract was in the following terms:
Thursday, 1st December, 2011
Dear Mr. Birner,
It is my pleasure to extend to you the following offer of transfer from the current Agreement on behalf of Aircraft Turnaround Engineering. You will be employed on a PERMANENT FULL TIME BASIS and these changes are to commence as soon as possible with both agreeing to the terms below.
TITLE: LAME DASH-8 series Mechanical - Licensed Aircraft Maintenance Engineer.
HOURS: 40 hrs a week - 80 hrs a fortnight on a rotating roster of four on four off eleven hour shifts.
BASE SALARY: Is $93,600.00; paid in fortnightly instalments, which is equivalent to $45.00 an hour, in addition of overtime, plus Superannuation.
LEAVE ENTITLEMENTS: Five weeks Annual Leave, Ten days Sick Leave (personal leave in accordance with National Employment Standards under the Fair Work Act).
Robert has been previously employed as a LAME and this commencement was in December, 2003.
You acknowledge that this offer letter represents the entire agreement between you and Aircraft Turnaround Engineering.
Yours sincerely
........................................... ................................
EDWARD DEEB ROBERT BIRNER
Director Licensed Aircraft
The respondent Maintenance Engineer
The respondent
In his affidavit filed on 20 November, 2015 Mr Birner says that he handed Mr Deeb the above letter. He says that Mr Deeb’s response was to the effect that he would have his own contract drawn up. However, Mr Birner never received a new contract from the respondent. Mr Birner says that he continued to work for the respondent on the basis that the respondent would adhere to the terms of the 6 May, 2010 letter.
Mr Birner says that the respondent commenced rostering him on for 80 hours per week and that he did not take the matter further “in fear of my employment”.
Mr Birner claims that after he gave Mr Deeb the 1 December, 2011 letter he asked Mr Deeb if leave would be available to take. Mr Birner says that Mr Deeb’s response was that he could have one week’s leave every six months but no mention was ever made that it was a “bonus”.
Mr Deeb’s evidence about that is that a person called Amanda Tanner (who I presume is an employee of the respondent) brought him a letter and said to Mr Deeb words to the effect: “What do you want to do about this?” Mr Deeb clarified what it was to which Ms Tanner was referring. It was the letter drawn by Mr Birner and dated 1 December, 2011. Mr Deeb told Ms Tanner to: “Tell him thanks but at present the respondent cannot offer full time employment.”
I accept Mr Deeb’s evidence about that. I am satisfied that Mr Birner’s draft letter of 1 December, 2011 was brought to Mr Deeb’s attention by Ms Tanner.
Despite Mr Birner denying any knowledge of it, I am satisfied that Mr Deeb signed and caused to be sent to Mr Birner a letter on 2 December, 2011 setting out that the respondent could not offer Mr Birner full time employment at that time.
On 29 January, 2012 the respondent implemented penalties for weekends and public holidays. Mr Birner says that at the same time his rostered hours were reduced marginally. By a letter dated 6 February, 2012 he sought clarification from the respondent as to why his rostered hours had been reduced. The terms of the letter reflect Mr Birner’s belief that he was entitled, by reason of the letter of 6 May, 2010 to 80 hours of work per fortnight. Mr Birner says that he never received any response to his enquiry.
On about 28 February, 2012 Mr Birner completed the schedule of experience required to qualify for his Dash-8 Q400 airframe licence.
Mr Birner says that he telephoned Mr Deeb to advise him that he had obtained his Q400 airframe licence. He says that Mr Deeb verbally agreed to increase his rate of pay from that set out in the letter of 6 May, 2010 as follows:
a)$47.50 per hour for ordinary time;
b)$55.00 per hour for working on a Saturday shift; and
c)$57.00 per hour for working a Sunday shift.
On 6 March 2012, Mr Birner gave to Mr Deeb a letter in the following terms:
Effective Monday, 12th March, 2012 are the following additions to the existing agreement between THE RESPONDENT AND ROBERT BIRNER:
• Rate increase $45 to $47.50 for ADDITION OF DASH-8 Q400 AIRFRAME RATING,
• Reiterated guaranteed 40hrs a week, 80hrs a fortnight,
• One weeks paid leave credits,
• Training assistance for Q400 PWI 580 Power Plant as soon as possible.
There were sections for Mr Birner and Mr Deeb to sign.
However Mr Deeb, I accept, did not sign the letter because the respondent could not guarantee Mr Birner 40 hours per week work. Mr Deeb had no other concerns about the terms of the letter. Mr Deeb considered that the third dot point in relation to the leave credits was consistent with his previous discussions with Mr Birner in relation to the one week’s bonus payment for each 12 months of good service.
I accept that shortly after receiving the 6 March, 2012 letter, Mr Deeb approached Mr Birner and said to him words to the effect: “I cannot guarantee your hours, we can only do the best we can with the hours we have. If you obtain your Q400 engine licence, your rates of pay will increase again.”
Mr Birner received his Q400 airframe licence on about 12 March, 2012 and the respondent increased Mr Birner’s hourly rate of pay. Subsequently, in October, 2015 Mr Birner obtained his Q400 engine licence.
From around December, 2011 until March, 2014 Mr Birner says that he was generally working a five day on, two day off roster and he was generally working 40 hours per week. He was always rostered for work and his hours and shifts were regular and followed a consistent pattern.
Mr Birner suffered a workplace injury on 6 January, 2014 and had some time away from work during which he received workers’ compensation benefits. Since suffering the workplace injury he says that his roster changed and became a little more variable. He was still receiving regular and continuous work but his hours and days of work change from roster to roster. At the time of his written evidence, Mr Birner worked a varied roster with some weeks working three days and others working four-five days in a week. The shifts are either nine hours or seven hours in duration.
According to his evidence, Mr Birner has received the following remuneration from the respondent:
Period of Employment
Sum received from the respondent
1 March 2010- 30 June 2010
$13,380.75
1 July 2010 - 30 June 2011
$63,548.00
1 July 2011 - 30 June 2012
$89,313.00
1 July 2012- 30 June 2013
$102,387.00
1 July 2013 - 30 June 2014
$69,357.00
1July 2014 to 30 June 2015
$75,491.00
1July 2015 to 6 September 2015
$17,943.95
Total Amount Paid
$431,420.70
Mr Birner claims that the total sum payable to him for the period from 1 March, 2010 until 6 September, 2015 inclusive is $490,374.89. The difference between that sum and what he has been paid is the amount claimed for unpaid remuneration in the proceedings, namely $58,954.19.
The annual leave benefits claimed by Mr Birner total 847.29 hours of accrued but untaken annual leave. That leave has a value of $993.34. He also claims a loading of 17.5% on the amount payable (if any) for accrued but untaken annual leave.
Mr Birner argues that consistent with his claim to be entitled to annual leave, he took, on three occasions, leave for which he was paid. He says that Mr Deeb agreed for him to take annual leave in 2012 to renovate his kitchen. He was absent from 8 October, 2012 to 21 October, 2012, a total of 80 hours. Mr Birner says that he was paid annual leave for that period. Mr Deeb swears that he provided that paid time away from work as the bonus that he spoke of at the meeting with Mr Birner in November 2011. Mr Birner’s payslip for that period does not record the leave as taken as annual leave, only as wages. That is consistent with the evidence from Ms Ducksbury.
Mr Birner says that he again took annual leave between 11 November, 2013 and 17 November, 2013 for 23.5 hours and a further leave amount of 16 hours from 18 November, 2013 to 24 November, 2013 (a total of 39.5 hours).
Mr Deeb swears that this was consistent with his offer to give Mr Birner a week’s leave of bonus pay for each year of good service.
Consideration
There is no dispute that Mr Birner was an employee of the respondent, employed as a licensed aircraft engineer or that he was a “national system employee” within the meaning of s.13 of the Fair Work Act as extended by s.30C of the Act. Similarly there is no dispute that the respondent was a “national system employer” within the meaning of s.14 of the Act as extended by s.30D of the Act.
Mr Birner’s employment from 1 March, 2010 was agreed at the meeting that he had with Mr Deeb and Mr Bowles in February, 2010. The employment was casual and would attract remuneration at the rate of $45.00 per hour. To the extent that Mr Birner claims that he was not informed of the terms of his engagement and in particular whether his employment was to be full-time, part-time or casual his claim must fail. He was so informed by Mr Deeb and he accepted the offer of casual employment that was offered to him.
Whilst Mr Birner argues that upon his return to employment with the respondent he was informed that his break in service would be deemed to have been merely a ‘leave of absence’, nonetheless his return was on the basis articulated by Mr Deeb at the meeting in February, 2010. Mr Birner accepted that basis. Indeed, immediately before his departure, his full-time employment had come to an end but he had continued to work for the respondent on a casual basis.
In my view, Mr Birner’s return to the respondent’s employment on 1 March, 2010 was on the basis that he was a casual employee.
What then, is the effect of the letter of 6 May, 2010. Even on Mr Deeb’s evidence, the letter contains more detail than the oral discussions that took place in February, 2010. It has references to:
a)the number of hours – “40 hrs a week – 80 hrs a fortnight”;
b)a “Base Salary” of $93,600 per annum paid in fortnightly instalments;
c)the possibility of additional overtime.
The respondent pleads that those references in the letter are reflective of what was in fact occurring when the letter was prepared – Mr Birner was working 38 ordinary hours per week and two additional reasonable hours per week and he was earning $45.00 per hour.
However, the letter is couched as an offer of employment. It is not drafted as confirming Mr Birner’s employment with the respondent. In that sense it is inconsistent with the proposition advanced by the respondent that it was merely written to confirm Mr Birner’s arrangements. He signed it and acknowledged, as the respondent required by the terms of the letter that it represented “the entire agreement between you and Aircraft Turnaround Engineering.”
The terms of the employment offered appear by and large, to be consistent with an offer of permanent full-time employment. The single matter that tells against that, on the face of the document, is the inclusion of the word “Casual” in the description of Mr Birner’s employment.
However, I have found above that the letter of 6 May, 2010 came into existence for a particular purpose. It was produced at Mr Birner’s request for the purposes of taking it to a financier. It was not produced by Mr Deeb for the purpose of making an offer of employment to Mr Birner – that was unnecessary because he was already working for the respondent on a casual basis. Mr Birner subsequently put the letter to the purpose for which it was obtained.
Thus, whilst on its face the letter purports to be an offer of employment capable of acceptance by Mr Birner, in my view, Mr Deeb (through whom the respondent acted) did not intend for the letter to create a new or different legal relationship between the respondent and Mr Birner. There was no intention on the part of the respondent to create any new or different legal relationship than that which already existed. The information in the letter reflected what was then occurring for Mr Birner in his employment and his hourly rate was annualised to give a base rate.
If that is so, then there is no question that Mr Birner’s employment, insofar as he and the respondent were concerned, was anything other than casual employment. To the extent then that Mr Birner’s case relies upon the proposition that there was a contractual entitlement to at least 40 hours per week of work or payment of an annual salary of $93,600 his claim must fail.
Mr Birner argues that the use of the phrase “full time basis” does away with the notion that his employment was casual and thereby the hours of work each week would be subject to fluctuation from time to time. However, in my view the use of the phrase does not lead to the result contended for by Mr Birner.
As senior counsel for the respondent argues, it might be said that the letter of 6 May, 2010 is ambiguous. Which part of the phrase “casual full time basis” should be subordinated to give effect to the parties’ operative intention? The word casual pulls in a different direction than does the phrase “full time basis”.
However, whilst it may seem that there is an apparent inconsistency between the descriptor “casual” and the use of the words “full time basis”, in my view the word “casual” is used to differentiate Mr Birner’s employment from permanent employment rather than whether he worked full-time hours or part-time hours: see for example Hamzy v Tricon International Restaurants (2001) 115 FCR 79. At the time the letter was given, Mr Birner was working weekend work. He was not working 40 hours per week. According to Mr Bowles unchallenged evidence he did not put Mr Birner into regular weekday work which equated, more or less 40 hours per week until a spot became available after another employee changed their shift arrangements.
Moreover, inconsistently with the notion that he was a permanent employee Mr Birner exercised his right to reject an offer of work on at least two occasions in respect of which Mr Bowles gave evidence.
For the same reasons, I am of the view that Mr Birner was a casual employee for the purposes of the Fair Work Act. That finding is not inconsistent with the notion that he might have been working “full time hours”: Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434. In those circumstances I am persuaded that Mr Birner should not be seen as “other than a casual employee” for the purposes of s.86 of the Fair Work Act.
Clause 11.3 of the Airline Operations – Ground Staff Award 2010 does not assist Mr Birner. As senior counsel for the respondent submits, if clauses 11.3 and 11.5 (that which deals with casual employees) of the Award contemplated that an employee who is engaged on a casual basis might automatically become a full-time employee upon working 38 hours in any one week, the Award would have included a provision which might have permitted the employee to transfer to full-time employment. Such a provision is not contained in the Airline Operations – Ground Staff Award 2010, but exists in other Awards: see for example cl.10.3(e) of the Electrical, Electronic and Communications Contracting Award 2010 and cl.13.4 of the Hospitality Industry (General) Award 2010.
Finally, Mr Birner has on several occasions since 6 May, 2010 sought to alter the nature of his employment arrangement with the respondent. On his own evidence he has tried to convince Mr Deeb to execute agreements that recognise his employment as permanent, but he has been unsuccessful in doing so. By his draft letter dated 1 December, 2011 (set out above) he proposed “to transfer from the current Agreement” to employment “on a PERMANENT FULL TIME BASIS”. That is inconsistent with an understanding that he was already employed on such a basis.
Further, by a draft memorandum dated 6 March, 2012, presented to Mr Deeb in March, 2012, Mr Birner sought employment from the respondent under which he was “guaranteed 40hrs a week, 80hrs a fortnight”. Mr Deeb could not sign that document.
I accept the respondent’s argument that the very fact that Mr Birner felt compelled to proffer the draft letter dated 1 December, 2011 and the draft memorandum dated 6 March, 2012 tells powerfully against Mr Birner’s contention that at any time prior to the May, 2010 letter he had entered into a fixed and full-time hours employment arrangement with the respondent.
Conclusion
I accept the respondent’s submission that the statement that Mr Birner was employed on a Casual full time basis” in the letter of 6 May, 2010 denoted an arrangement under which Mr Birner was and remained a casual employee, tending to work full time hours on a regular and systematic basis, but without the certainty of permanent full-time employment.
In my view Mr Birner has not made out any aspect of his claim and the application must be dismissed.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 28 April, 2017.
Date: 28 April, 2017
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