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
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CaseChat Overview and Summary
In the case of Cacciola v Serco Australia Pty Ltd, the applicant, Cacciola, appealed against the decision of the Industrial Magistrates Court of Western Australia, which had dismissed his claim of underpayment and contraventions of the Fair Work Act 2009 (Cth). The primary issue before the court was the interpretation of the employment agreement and the applicability of the Serco Enterprise Agreement to Cacciola's employment as a casual employee. The applicant argued that he was underpaid and that the respondent contravened the Fair Work Act by not adhering to the Serco Enterprise Agreement.
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.
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
In the letter of employment, the applicant was invited to confirm his acceptance of an offer of employment on the terms and conditions set out in a schedule to the letter 'in conjunction with [the] "Offer of Casual Employment - Justice West v 1"', by signing and returning the letter. According to an agreed statement of facts that formed part of the evidence before the magistrate (Agreed Facts), the applicant was engaged as a casual employee of the respondent in the position of a 'Casual Trainee Custodial Officer' pursuant to the letter of employment. The schedule to the letter of employment contained certain information about the applicant's employment with the respondent. Relevantly, the schedule recorded that the applicant's job title was 'Trainee Custodial Officer', and that his classification was 'Trainee Custodial Officer (Induction)'. The schedule also contained the following information: Attached to the letter of employment was the Justice West offer, which set out the terms and conditions of the offer of employment that was made to the applicant, and provided that the schedule to the letter of employment formed part of those terms and conditions. Collectively, the Justice West offer and the schedule in the letter of employment were defined as 'the Agreement'. The Justice West offer expressly provided that the Serco Enterprise Agreement (which was defined in the schedule to the letter of employment as the 'Instrument') would 'also apply to [the applicant's] employment but it will not form part of this Agreement'. Further, cl 19 of the Justice West offer provided that the Agreement was the entire agreement between the applicant and the respondent. The applicant's remuneration was the subject of cl 3 of the Justice West offer. Sub-clause 3(a) provided that the applicant's 'rate of pay would be as outlined in the Schedule in accordance with the terms of the Instrument for [the applicant's] job classification', and that the applicant would be paid any applicable penalty rates, allowances and loadings under the 'Instrument' whilst it applied to his employment. Clause 5 of the Justice West offer provided that the applicant was to be employed on a casual basis, and that he would be offered work on an hourly basis as required by the respondent. Clause 13 also provided that the applicant's employment could be terminated at any time by either the applicant or the respondent by giving 1 hours' notice in accordance with the terms of the 'Instrument'.The 'Instrument' As can be seen from the extract taken from the schedule that formed part of the letter of employment, which appears at [18] of these reasons, the 'Instrument' was defined as the 'Serco CPSU Acacia General Enterprise Agreement 2017'. However, the Agreed Facts that were before the magistrate referred to the Serco CPSU Acacia Prison General Enterprise Agreement 2017. Notwithstanding the different descriptions given to the 'Instrument', I have assumed that they are both references to the Serco Enterprise Agreement.
Evidence
Evidence Before The Court
As I have already said, the magistrate dismissed the applicant's claim. To properly understand why the claim was dismissed it is necessary to say something about the respective cases that were presented to the magistrate.The evidence Having regard to the real issues in this appeal, it is unnecessary to refer to the evidence that was before the magistrate in great detail. None of the evidence was challenged.The applicant's witness statement The applicant relied on a witness statement said to have been signed by him on 23 December 2021. I have assumed that the unsigned copy of the witness statement that formed part of the appeal book in this matter is a true copy of the signed version of that document. In that witness statement, the applicant set out his employment history with the respondent. Attached to the witness statement was what the applicant described as the 'initial letter of employment' and the 'terms and conditions of employment', each dated 28 June 2018, which he says were provided to him just before he commenced employment with the respondent. The 'initial letter of employment' was the letter of employment.The applicant's letter of employment In the letter of employment, the applicant was invited to confirm his acceptance of an offer of employment on the terms and conditions set out in a schedule to the letter 'in conjunction with [the] "Offer of Casual Employment - Justice West v 1"', by signing and returning the letter. According to an agreed statement of facts that formed part of the evidence before the magistrate (Agreed Facts), the applicant was engaged as a casual employee of the respondent in the position of a 'Casual Trainee Custodial Officer' pursuant to the letter of employment. The schedule to the letter of employment contained certain information about the applicant's employment with the respondent. Relevantly, the schedule recorded that the applicant's job title was 'Trainee Custodial Officer', and that his classification was 'Trainee Custodial Officer (Induction)'. The schedule also contained the following information: Attached to the letter of employment was the Justice West offer, which set out the terms and conditions of the offer of employment that was made to the applicant, and provided that the schedule to the letter of employment formed part of those terms and conditions. Collectively, the Justice West offer and the schedule in the letter of employment were defined as 'the Agreement'. The Justice West offer expressly provided that the Serco Enterprise Agreement (which was defined in the schedule to the letter of employment as the 'Instrument') would 'also apply to [the applicant's] employment but it will not form part of this Agreement'. Further, cl 19 of the Justice West offer provided that the Agreement was the entire agreement between the applicant and the respondent. The applicant's remuneration was the subject of cl 3 of the Justice West offer. Sub-clause 3(a) provided that the applicant's 'rate of pay would be as outlined in the Schedule in accordance with the terms of the Instrument for [the applicant's] job classification', and that the applicant would be paid any applicable penalty rates, allowances and loadings under the 'Instrument' whilst it applied to his employment.
Decision
Reasons for decision
The respondent also denied that it had contravened the Serco Enterprise Agreement or that it had contravened any provisions of the Fair Work Act.The magistrate's decision As I have already said, the magistrate dismissed the applicant's claim. To properly understand why the claim was dismissed it is necessary to say something about the respective cases that were presented to the magistrate.The evidence Having regard to the real issues in this appeal, it is unnecessary to refer to the evidence that was before the magistrate in great detail. None of the evidence was challenged.The applicant's witness statement The applicant relied on a witness statement said to have been signed by him on 23 December 2021. I have assumed that the unsigned copy of the witness statement that formed part of the appeal book in this matter is a true copy of the signed version of that document. In that witness statement, the applicant set out his employment history with the respondent. Attached to the witness statement was what the applicant described as the 'initial letter of employment' and the 'terms and conditions of employment', each dated 28 June 2018, which he says were provided to him just before he commenced employment with the respondent. The 'initial letter of employment' was the letter of employment.The applicant's letter of employment In the letter of employment, the applicant was invited to confirm his acceptance of an offer of employment on the terms and conditions set out in a schedule to the letter 'in conjunction with [the] "Offer of Casual Employment - Justice West v 1"', by signing and returning the letter. According to an agreed statement of facts that formed part of the evidence before the magistrate (Agreed Facts), the applicant was engaged as a casual employee of the respondent in the position of a 'Casual Trainee Custodial Officer' pursuant to the letter of employment. The schedule to the letter of employment contained certain information about the applicant's employment with the respondent. Relevantly, the schedule recorded that the applicant's job title was 'Trainee Custodial Officer', and that his classification was 'Trainee Custodial Officer (Induction)'. The schedule also contained the following information: Attached to the letter of employment was the Justice West offer, which set out the terms and conditions of the offer of employment that was made to the applicant, and provided that the schedule to the letter of employment formed part of those terms and conditions. Collectively, the Justice West offer and the schedule in the letter of employment were defined as 'the Agreement'. The Justice West offer expressly provided that the Serco Enterprise Agreement (which was defined in the schedule to the letter of employment as the 'Instrument') would 'also apply to [the applicant's] employment but it will not form part of this Agreement'. Further, cl 19 of the Justice West offer provided that the Agreement was the entire agreement between the applicant and the respondent.
Ratio Decidendi
Legal Principle Established
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