Birner v Aircraft Turnaround Engineering Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Birner v Aircraft Turnaround Engineering Pty Ltd [2019] FCA 1085

Appeal from: Birner v Aircraft Turnaround Engineering Pty Ltd [2017] FCCA 852
File number: QUD 241 of 2017
Judge: COLLIER J
Date of judgment: 11 July 2019
Catchwords: INDUSTRIAL LAW – meaning of ‘casual full-time basis’ in letter of employment – entitlement to annual leave – whether worker had been informed of the terms of his engagement - whether primary Judge erred in finding employee was a casual employee for the purposes of s 86 of the Fair Work Act 2009 (Cth) – alleged falsification of records – whether annualised base salary – whether relevant to classification – whether an individual flexibility arrangement exists – application of principles in WorkPac Pty Ltd v Skene [2018] FCAFC 131
Legislation:

Fair Work Act 2009 (Cth) ss 13, 14, 30C, 30D, 45, 62, 86, 143, 144, 145, 545(2)(b), 546, 547, 570

Airline Operations – Ground Staff Award 2010 cll 7.4, 11.3, 11.5, 14, 15

Cases cited: Birner v Aircraft Turnaround Engineering Pty Ltd [2017] FCCA 852
Birner v Aircraft Turnaround Engineering Pty Ltd (No 2) [2018] FCCA 3576
Skene v Workpac Pty Ltd [2016] FCCA 3035
Symons v White (Sydney Catholic Schools) [2018] FCA 949
Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434; (2013) 230 IR 30
Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321; (2010) 201 IR 123
WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 362 ALR 311
Date of hearing: 19 July 2018
Date of last submissions: 22 October 2018 (Respondent)
13 November 2018 (Appellant)
Registry: Queensland
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 77
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondent: Mr M Jonsson QC
Solicitor for the Respondent: Peters Bosel Lawyers

ORDERS

QUD 241 of 2017
BETWEEN:

ROBERT BIRNER

Appellant
AND:

AIRCRAFT TURNAROUND ENGINEERING PTY LTD

Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

11 JULY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLLIER J:

BACKGROUND

  1. This is an appeal from the decision of the Federal Circuit Court in Birner v Aircraft Turnaround Engineering Pty Ltd [2017] FCCA 852 in which the primary Judge dismissed an application for declarations, compensation, damages, a pecuniary penalty and costs that were said to arise from contraventions of the Fair Work Act 2009 (Cth) (FW Act). I note for completeness the primary judgment was followed by a decision dismissing an application for costs in Birner v Aircraft Turnaround Engineering Pty Ltd (No 2) [2018] FCCA 3576; though the costs decision does not form part of the appeal presently before me.

  2. Mr Birner, the appellant, was employed from time to time since 2003 by Aircraft Turnaround Engineering Pty Ltd (ATE), the respondent, as a Licensed…

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Details
Case
[2019] FCA 1085
Decision Date

CaseChat Overview and Summary

In the case of Birner v Aircraft Turnaround Engineering Pty Ltd, the respondent, ATE, appealed against a decision of the primary Judge, who found that Mr Birner, the appellant, was a casual employee and not entitled to annual leave. The Full Court dismissed the appeal, finding that the primary Judge's decision was correct. The court examined the nature of Mr Birner's employment, considering whether he was informed of the terms of his engagement and whether he was employed on a casual full-time basis. The court also considered the meaning of "casual full-time basis" in the May 2010 letter and whether an individual flexibility arrangement existed. The court found that the primary Judge's decision was not erroneous and dismissed the appeal.
The primary legal issue in this case was whether the primary Judge erred in finding that Mr Birner was a casual employee for the purposes of s 86 of the Fair Work Act 2009 (Cth). The court also considered whether the primary Judge erred in allowing certain evidence to be entered and whether the primary Judge gave weight to the evidence of Mr Deeb, the managing director of ATE. The court found that the primary Judge's decision was not erroneous and dismissed the appeal.
The Full Court found that the primary Judge's decision was not erroneous and dismissed the appeal. The court found that Mr Birner was not entitled to annual leave as he was a casual employee and not entitled to accrue annual leave. The court found that the primary Judge did not err in finding that Mr Birner's employment was casual and that the May 2010 letter did not create a new or different legal relationship between Mr Birner and ATE. The court also found that there was no evidence of deliberate falsification of records and that the primary Judge did not rely on the allegedly unreliable payroll records in his decision. The court dismissed the appeal and made no orders.

Orders

Orders of the court

1. The appeal be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In my view the decision of his Honour is not disturbed by the Full Court authority of Skene.4. False and misleading evidence In ground of appeal 3 Mr Birner claims, inter alia, that the respondent entered 72 pages of falsified pay records created on 7 October 2015 in the affidavit of Mr Deeb filed on 18 December 2015. At ground of appeal 3(c) Mr Birner claims further that the primary Judge erred in allowing those records to be entered into evidence and at ground of appeal 3(d) that his Honour erred in not mentioning the pay records in the judgment and by giving weight to the evidence of Mr Deeb. In written submissions filed on 26 June 2018 Mr Birner said:30)The Payroll Advice Records ERD5, that the Respondent relied on were altered by the newly installed software when the Payroll Advice was created on 7 October 2015 at 10.50AM. See, Fair Work Regulations 3.44, 2), 3), 4), 5) and most relevantly 6).31)The effects of that alteration changed the details in the Payroll Advice as rebutted and recorded in the Appellants Affidavit filed 11 January 2016. That alteration made that evidence unreliable.(Emphasis added, footnotes omitted.) Mr Birner also alleged that Counsel for the respondent knew that the evidence was false and misleading. In my view this ground of appeal is not substantiated. First, I am satisfied that neither the respondent nor its Counsel sought to mislead the primary Judge, or rely on falsified information. During the hearing at first instance, for example, during cross-examination by Mr Birner, Mr Deeb gave the following evidence:In your – in your affidavit ERD05- I know I brought this up, your Honour, about it not being reliable. This is what I was referring to. If I may, just one question on that.HIS HONOUR: Yes. All right.MR BIRNER: In your evidence, you show a payslip from around 14 March 2001. In fact, 15th – if I can go down to the second one, 15.3.2010 to 28.3.2010.HIS HONOUR: So which page are you looking at, sir? Page number?MR BIRNER: Sorry. Page 28.HIS HONOUR: 28. Thank you.MR BIRNER: ERD05.HIS HONOUR: Yes. Thank you.MR BIRNER: Would you say that’s the current – would you say that’s the current template for our payslips, our pay record? --- Yes. That seems to be the current template.Would you say that’s the same – that’s the previous template in 2010 that was used? --- I don’t think it’s an exact template. We’ve had several software upgrades since then which automatically alters the templates.Is it normal to go over closed records and alter all the records back that far? --- I’m not qualified to answer that. Some software does require you to use their software to record electronic company transactions and therefore it does it automatically. We have no control over that.(Transcript BRG864/2015 20 July 2016 pp 45-46) It is apparent from this evidence that (a) the respondent had experienced software upgrades to its computer systems which had altered the templates of its payroll records, and (b) the managing director of the respondent freely conceded both that fact and that he was not entirely sure how the payroll records might have changed. His Honour was clearly aware of this line of cross-examination, because Mr Birner brought to his Honour’s attention the fact that he wished to question Mr Deeb on reliability of the payroll records. The concession of Mr Deeb and evidence of software upgrades negate the allegation of deliberate falsification of records as alleged by Mr Birner.

Decision

Reasons for decision

Finally, and in any event, it is not apparent to me how his Honour erred in not making reference in the primary judgment to these allegedly unreliable payroll records, in circumstances where his Honour did not appear to rely on them in his decision. His Honour made specific reference to the rosters, which Mr Birner relied on, and nonetheless found in the respondent’s favour. The content of the payroll records appears of peripheral relevance in this case.CONCLUSION In my view none of the appellant’s grounds of appeal are substantiated. The appropriate order is to dismiss the appeal.

Ratio Decidendi

Legal Principle Established

In relation to Mr Birner’s claims that he was paid annual leave and was entitled to annual leave loading for periods of absence in 2012 and 2013, ATE denied that the payments were made as “annual leave” because:·Mr Birner was a casual employee and was not entitled to accrue annual leave; and·the payments were bonuses offered during a meeting in November 2011 where ATE offered to pay Mr Birner a bonus of agreed leave and one week’s wages for each 12-month period he worked for the company.Primary Judge’s findings and consideration In the primary decision, his Honour observed at [74] that it was not in contention that Mr Birner was employed by ATE as a LAME, that he was a national system employee and that ATE was a “national system employer” (FW Act ss 14 and 30D). The primary Judge at [20], [75] and [77] was satisfied that a meeting occurred between Messrs Birner, Deeb and Bowles during which it was agreed that Mr Birner would be employed on a casual basis at the rate of $45 per hour, and therefore his Honour found that Mr Birner’s claim 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” failed.Effect of the May 2010 letter In considering the effect of the May 2010 letter the primary Judge noted at [80]-[81] that it was “couched” as an offer of employment and not drafted as mere confirmation of Mr Birner’s employment. In his Honour’s view, that the offer was for permanent full-time employment was negated by the word “Casual” that appeared in the first paragraph of the May 2010 letter. At [82] the primary Judge found that the May 2010 letter:·came into existence at the request of Mr Birner for the “particular purpose” of taking it to a financier;·was not authored for the purpose of offering employment to Mr Birner (his Honour noted “that was unnecessary because he was already working for [ATE] on a casual basis”); and·was subsequently used by Mr Birner “for the purpose for which it was obtained.” In relation to the contractual relationship Mr Birner argued was established by way of the May 2010 letter, his Honour made the following findings:83.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.84.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.Interpretation of “Casual full time basis” in the May 2010 letter