FEDERAL COURT OF AUSTRALIA
Cacciola v Serco Australia Pty Ltd [2025] FCA 361
Appeal from: Application for extension of time: Robert Cacciola v Serco Australia Pty Ltd (2022) WAIRC 00655 File number: WAD 212 of 2022 Judgment of: VANDONGEN J Date of judgment: 14 April 2025 Catchwords: EMPLOYMENT AND INDUSTRIAL RELATIONS - appeal from decision of Industrial Magistrates Court of Western Australia - alleged contraventions of enterprise agreement by underpayment - alleged contraventions of s 50 and s 323(1) of the Fair Work Act 2009 (Cth) - interpretation of enterprise agreement - application for extension of time allowed - appeal dismissed Legislation: Fair Work Act 2009 (Cth) ss 12, 14, 42, 50, 51, 52, 53, 323, 539, 545, 546, 565
Federal Court of Australia Act 1976 (Cth) ss 24, 25, 27, 28
Federal Court Rules 2011 (Cth) r 36.03, 36.05
Cases cited: Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627
Mahommed v Cox as Administrator of the Deceased Estate of Dixon [2023] FCAFC 107
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11; (2019) 99 NSWLR 317
Target Australia Pty Ltd v Shop, Distributive and Allied Employees' Association [2023] FCAFC 66
WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536
Division: Fair Work Division Registry: Western Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 117 Date of hearing: 19 February 2025 Counsel for the Applicant: Ms J Flinn with Ms A McNamara Solicitor for the Applicant: Slater & Gordon Lawyers Counsel for the Respondent: Mr J Fernon SC Solicitor for the Respondent: Baker & McKenzie Solicitors ORDERS
WAD 212 of 2022 BETWEEN: ROBERT CACCIOLA
Applicant
AND: SERCO AUSTRALIA PTY LTD
Respondent
ORDER MADE BY:
VANDONGEN J
DATE OF ORDER:
14 APRIL 2025
THE COURT ORDERS THAT:
1.The application for an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) to file a notice of appeal from the judgment of the Industrial Magistrates Court of Western Australia is allowed.
2.The notice of appeal attached to the affidavit of Craig Fordham sworn on 2 December 2022 is to be accepted for filing.
3.The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
VANDONGEN J:
The applicant, Robert Cacciola, was employed by the respondent pursuant to the terms of a written contract of employment dated 28 June 2018. In the Industrial Magistrates Court of Western Australia (Industrial Magistrates Court), the applicant claimed that the respondent, Serco Australia Pty Ltd, had underpaid him during a period of about nine months in 2018 and 2019 (relevant time), and that it had thereby contravened various provisions of the Serco CPSU Acacia Prison General Enterprise Agreement 2017 (Serco Enterprise Agreement
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- AGLC
- Cacciola v Serco Australia Pty Ltd [2025] FCA 361
- Case
- [2025] FCA 361
- Decision Date
CaseChat Overview and Summary
The court considered the terms of the employment agreement, which included the Justice West offer and the schedule attached to the letter of employment, collectively referred to as the Agreement. The Agreement specified that the Serco Enterprise Agreement would apply to the applicant's employment but would not form part of the Agreement. Clause 19 of the Justice West offer further stated that the Agreement was the entire agreement between the applicant and the respondent. The applicant's remuneration was determined by the schedule in accordance with the terms of the Serco Enterprise Agreement for his job classification.
After reviewing the evidence, the court found that the applicant's claim was dismissed because the Justice West offer and the schedule to the letter of employment constituted the entire agreement between the applicant and the respondent, excluding the Serco Enterprise Agreement. The court held that the respondent was not required to apply the terms of the Serco Enterprise Agreement to the applicant's employment, as it was not part of the Agreement.
The court dismissed the appeal and allowed the application for an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) to file a notice of appeal from the judgment of the Industrial Magistrates Court of Western Australia. The notice of appeal attached to the affidavit of Craig Fordham sworn on 2 December 2022 was accepted for filing. The appeal was ultimately dismissed.
Orders
Orders of the court
1. The application for an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) to file a notice of appeal from the judgment of the Industrial Magistrates Court of Western Australia is allowed.
2. The notice of appeal attached to the affidavit of Craig Fordham sworn on 2 December 2022 is to be accepted for filing.
3. The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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