DAVIES v Carnachan Family Trust Pty Ltd
[2018] FCCA 545
•8 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAVIES v CARNACHAN FAMILY TRUST PTY LTD | [2018] FCCA 545 |
| Catchwords: INDUSTRIAL LAW – Small claims – applicant claims underpayment of overtime, accrued annual leave, annual leave loading under the Pastoral Award 2010 (“the Award”) and payment in lieu of notice under s.117 of the Fair Work Act 2009 (Cth) (“the Act”) on the basis he was employed as a full-time employee – applicant claims the underpayments on the basis he was employed as a Farm and Livestock Hand Level 7 under the Award – respondent argues applicant was engaged as a casual and was employed as a Farm and Livestock Hand Level 5 under the Award – held that applicant was engaged as a casual and employed as a Farm and Livestock Hand Level 5 under the Award – applicant’s application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.117, 123, pt.4-1 div.3 Pastoral Award 2010, cls.10.2, 10.4, 27.5, 27.7, 31.3 |
| Cases cited: City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362 Doyle v Sydney Steel Co Ltd [1936] HCA 66; (1936) 56 CLR 545 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Joyce v Christofferson (1990) 26 FCR 261 Ledger v Stay Upright Pty Ltd [2016] FCA 659 Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 Putland v Royans Wagga Pty Limited [2017] FCA 910 |
| Applicant: | GARETH DAVIES |
| Respondent: | CARNACHAN FAMILY TRUST PTY LTD |
| File Number: | MLG 1612 of 2017 |
| Judgment of: | Judge Jones |
| Hearing date: | 27 October 2017 |
| Date of Last Submission: | 27 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 8 March 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Ms Finch, Human Resources Manager for the Respondent, being granted leave appeared on behalf of the Respondent. |
ORDERS
The Applicant’s Application filed on 20 July 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1612 of 2017
| GARETH DAVIES |
Applicant
And
| CARNACHAN FAMILY TRUST PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application made under the small claims procedure in pt.4-1 div.3 of the Fair Work Act 2009 (Cth) (“the Act”).
The Applicant claims that he was employed on a full-time basis by the Respondent from 9 August 2016 to 31 March 2017, and was covered by the Pastoral Award 2010 (“the Award”) during his employment. The Applicant also claims that he worked as a Farm and Livestock Hand Level 7 (“FLH7”) under the Award. The Applicant claims that the Respondent failed to pay him overtime and accrued annual leave, together with annual leave loading and payment in lieu of notice on the termination of his employment. The total amount that the Applicant claims is $14,651.78.
In support of his claim, the Applicant filed a Form 5 – Small claim under the Fair Work Act 2009 on 25 July 2017, and an affidavit on 13 October 2017.
The Respondent is a corporate trustee of Carnachan Family Trust (“the Trust”). Ms Bernadette Rose Carnachan and Mr Zane Laudadale Ahurangi Carnachan were, at the relevant time, trustees of the Trust. The Trust ran various rural properties as dairy farms. The Trust leased a property called the NZ Mozzie’s Farm (“the Farm”), which was also run as dairy farm. Ms Carnachan filed an affidavit on 26 October 2017, and a further affidavit on 1 November 2017 in accordance with Orders regarding the structure of the Trust.
The Respondent agrees that the Applicant was covered by the Award. The Respondent claims, however, that the Applicant was employed as a casual employee, and that he worked as a Farm and Livestock Hand Level 5 (“FLH5”) classification under the Award. The Respondent also claims that the Applicant was employed from 1 August 2016 to 1 April 2017. Ms Carnachan (on behalf of the Respondent) concedes that the Applicant was entitled to overtime, which she says was not paid because the Applicant was paid a flat-rate for each hour that he worked. Ms Carnachan says she has calculated the number of overtime hours worked by the Applicant to be 188 hours.[1]
[1] The Affidavit of Bernadette Rose Carnachan filed on 26 October 2017 at [5], [10].
The key issues in dispute are:
a)the Award classification that applied to the employment of the Applicant; and
b)whether the Applicant was employed as a full-time employee, or a casual employee.
There are two further issues that arise. The first issue is whether the Applicant was entitled to claim overtime, pursuant to cl.31 of the Award. The second issue arises if the Court finds that the Applicant was a casual employee. This issue is whether the Applicant, as a casual employee, would be entitled to payment in lieu of notice on termination under s.117 of the Act.
Having regard to the evidence, I am satisfied that the Applicant was employed by the Respondent from 9 August 2016 to 1 April 2017. There is no dispute that the Respondent placed an advertisement on Facebook for the position, which the Applicant responded to. The Respondent sent an SMS text message to the Applicant on 9 August 2016, which read:[2]
We lease a farm in Dawson raising up to 200 cows, the lease ends on 1st of April 2017 and we are looking for someone to milk 3 days a week and every second weekend.
The shed is a 15 [illegible] double up, we need someone capable of sole charge, able to feed out, pick up new calves, feed calves and fix any breakages that occur, my partner and I both contract milk on other farms so need someone that can fill in the days we can’t milk at our lease farm…
[2] Ibid Annexure BRC-1.
Following this, Ms Finnity (Ms Carnachan’s business partner) sent an SMS text message to the Applicant, which read as follows:[3]
Ok thanks we are after someone to do 3 days a week and every second weekend we lease the farm which finishes on 1st April next year. We need someone sole charge as we contract milk on 2 other farms and Bernie who is my partner in the farm contract milks on 1300 cow farm, she is also looking for workers just milk at the bigger job so could be extra work if you need more than three days.
[3] Ibid.
The Applicant commenced working on the Farm on 9 August 2016. Following a work-related injury on 20 December 2016, the Applicant commenced working light duties from 30 January 2017, in accordance with the certificate of capacity issued by his general practitioner.[4] He continued performing light duties at the other farms leased by the Trust, until his employment was terminated.
[4] Ibid Annexure BRC-3.
The Applicant was issued pay slips during his employment. [5] He was paid, on a weekly basis, a flat rate of $25.00 per hour. Ms Carnachan claims that the Applicant did not complete and file timesheets provided to him, but instead sent SMS text messages to her regarding the hours worked. She says that she is unable to produce those SMS text messages, as the mobile phone from which they were sent was damaged.[6] Her evidence is that the identification of the hours worked on each pay slip was based on these messages. The Respondent did not afford the Applicant annual leave during his period of employment, nor was he paid accrued annual leave on the termination of his employment.
What Award classification applied to the Applicant’s employment?
[5] The Applicant’s Affidavit filed on 13 October 2017, Annexure A.
[6] The Affidavit of Bernadette Rose Carnachan filed on 26 October 2017 at [10].
Principles in determining applicable award classification
The courts and industrial tribunals have developed principles to be applied to ascertain whether an employee falls within a particular classification described in an award or agreement. Where the employee performs mixed functions, the approach has been to examine the “major and substantial employment” of the employee or the “principal purpose” or “primary function” of the employee.
For example, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200, Moore J referred to and applied decision of Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 where his Honour, applying the “major and substantial employment” test, relevantly observed:
…it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.
The task of the Court in examining the major, substantial or principal aspect of the work performed by the employee will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment, and what the employee was employed to do. The question is one of fact, to be determined by reference to the duties actually attaching to the position, rather than its title: City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362 at 379; Joyce v Christofferson (1990) 26 FCR 261 at 278.
The provisions for FLH5 and FLH7 classifications are respectively cls.27.5 and 27.7 of the Award.
Clause 27.5 of the Award provides:
27.5 Farm and livestock hand level 5 (FLH5)
An employee at this level includes:
(a) Dairy operator grade 2 who:
● has two years experience in the industry;
● uses their knowledge and skills to multiple operations involving basic levels of problem solving and decision making; and
● has an appreciation of the overall processes involved in a dairy farm.
Indicative of the tasks which an employee at this level may perform are the following:
● operate milking plant and equipment, undertake multiple functions, produce a quality outcome e.g. farm machinery;
● maintain machinery, undertake adjustments and size changes;
● solve problems and make decisions within given guidelines;
● know general scientific terminology and assist with processes such as machine repair, artificial insemination, fertiliser mix design etc.;
● operate standard measuring equipment;
● operate computerised systems using menu options;
● contribute to the team in a specific role, providing input and assisting other team members; and
● work at times without supervision.
Clause 27.7 of the Award provides:
27.7 Farm and livestock hand level 7 (FLH7)
An employee at this level includes:
(a) Senior dairy operator grade 1 who:
● uses their knowledge and skills to coordinate the operation of a farm process or area of expertise e.g. milking and animal attendance, pasture and farm maintenance, breeding programs and artificial insemination area.
Indicative of the tasks which an employee at this level may perform are the following:
● overview of all farm operations;
● show strong planning and organising abilities, develop work plans to achieve objectives;
● operate computer equipment and software packages requiring set-up and basic function operation;
● maintain equipment requiring modification, part replacement and overhauls;
● gather information, generate a range of options and implement a course of action to solve problems;
● demonstrate a comprehensive understanding of the dairy industry monitoring the industry through literature;
● use measuring equipment requiring calibration and measurement conversion;
● use established scientific processes in at least one area of specification;
● co-operate with other team members, establish priorities and work goals; and
● work with others to develop their competencies.
Both the Applicant and the Respondent relied on information produced by various farming industry associations in relation to the appropriate classification.
When asked why he believed that he falls within the classification FLH7 during his period of employment with the Respondent, the Applicant gave evidence that it was predominantly because he was on the Farm by himself for 10 days per fortnight, using the knowledge and skills to coordinate the operation of a farm process or area of expertise. The Applicant said that he was on the Farm by himself, and was left to milk the dairy herd of cattle, and do all farm duties by himself. The Applicant claims that no-one assisted him in the sole charge position.
The Applicant also said that he maintained the dairy equipment, and the diary shed itself. The Applicant said that he gathered information by driving around the Farm to see what grass was available to the cows, and using that information. The Applicant said that he coordinated with the other farm managers to see if they needed to change where the cows were grazing. The Applicant said that he believed he had a demonstrated a comprehensive understanding of the dairy industry, as he had been dairy farming for 12 years.
The Applicant agreed that he did not develop work plans. He agreed that he was provided with a notebook by Ms Carnachan and Ms Finnity, which included paddock numbers indicating which paddock to graze the cows. Although the Applicant conceded that he was instructed to a degree, he maintained that he worked with Ms Carnachan and Ms Finnity about which paddock the cows should be moved to graze. The Applicant gave evidence that, on occasions, he might have grazed the cows in another paddock because the feed was better. The Applicant said that he did this without consulting Ms Carnachan or Ms Finnity. The Applicant said that he might do this once per fortnight. He agreed, however, that that the Respondent developed an overall plan for the performance of his duties. The Applicant gave evidence that, in his notebook, he wrote down tasks that he believed should be done for the day (such as repairs). The Applicant said that he did not have the notebook with him at the hearing, as it was lost when he moved house following the termination of his employment.
The Applicant said that if there were problems with equipment, he organised for its repair, but only after he had obtained approval from the Respondent. The Applicant said that he did not use measuring equipment to calibrate the farm equipment, as it was not on the Farm. The Applicant said that he did not establish scientific processes in at least one area of specification. The Applicant commented that he did not know of many dairy farms that “apply science.”
When the Applicant was taken to cl.27.5 of the Award (providing for FLH5), he stated that it provided that an employee would “work at times without supervision”, whereas he always worked without supervision. The Applicant agreed that he was subject to monitoring, but maintained there was no direct supervision.
I asked the Applicant to describe his daily routine. The Applicant’s evidence was that he first milked the cows, ate breakfast, and then undertook general farm duties, such as repairs, watering, feeding out, and picking up calves. The repairs involved tasks such as mending fences or gates, and on occasions, cleaning the dairy filters. The Applicant explained that the cups would become full of stones because the dairy was old, and if the milk pump filled with stones, he would either attempt to clear it himself, or if the pump required to be pulled apart, he would call someone in to do the repair job. The Applicant explained that the first time that the pump became blocked, he did not know what was wrong. The Applicant said that he rang Ms Carnachan to ask what was wrong, and she told him how to unblock pump, following which he did unblock the pump on numerous occasions. The Applicant conceded that even after consulting Ms Carnachan, he was unable to repair the pulsators, so he was required to call someone else in to perform the repair.
The Applicant said that his other duties during the day were watering paddocks, feeding calves, and feeding supplementary feed to stock. The Applicant said that he then milked the herd again at the end of the day, and on occasions, may have been required to water the paddocks again.
Ms Carnachan’s evidence was that there were only a couple of gates at the farm, and on one or two occasions, the Applicant may have been required to repair fences, but in her opinion, these repair duties could not have taken up the Applicant’s time on an ongoing basis.
Ms Carnachan said that she recalled the Applicant sending her a SMS text message regarding unblocking the filters of the milk pump.
Ms Carnachan agreed that a lot of the Applicant’s work was unsupervised.
Conclusion
Having regard to the evidence as a whole, I am not satisfied that the Applicant met the requirements of the FLH7 classification during his employment with the Respondent.
I am not satisfied that during his engagement with the Respondent, the Applicant exercised knowledge and skills, and performed the indicative tasks specified for classification level FLH7. It could certainly be said that the Applicant had “an overview of all farm operations”. However, in deciding whether or not an employee ought be classified at a particular level, regard must be had to all of the specified skills, knowledge, and indicative tasks. This is not to say that an employee must have performed each of the tasks specified at the level (as the tasks are described as “indicative”), however a court must be satisfied, having regard to the various indicative tasks, that the employee performed duties that reach the standard established by those indicative tasks.
The evidence is that the Applicant did not develop work plans to achieve objectives, although on occasion, he might have exercised discretion to graze the dairy herd in a different paddock, or to undertake certain duties on a particular day. The Applicant did not operate computer equipment and/or software packages, maintain equipment requiring modifications, part replacement, or overhauls, nor did the Applicant gather information, generate a range of options, and implement a course of action to solve problems. The Applicant clearly admits that he did not use measuring equipment requiring calibration and measurement conversion, or use an established scientific process in one area of specification.
The Applicant’s evidence is that his opinion that he was employed at the FLH7 classification level is based on the fact that he had “sole charge” of the Farm. There is no doubt that for three days a week and alternate weekends, he was in charge of the milking of the dairy herd and some associated duties. However, I am not satisfied that the Applicant worked completely unsupervised. The evidence is that he worked under a plan devised by the Respondent for the grazing cattle, and did not engage in repair duties such as unblocking the dairy pump or other duties such as spraying the weeds without first consulting with Ms Carnachan.
In my opinion, the duties of the Applicant fell more comfortably within the general description of knowledge and skills, and indicative tasks specified at classification FLH5 of the Award. In my opinion, it is reasonable to conclude that the Applicant could be said to have worked at times without supervision when he milked the cows. However, the skills and responsibilities, and indicative tasks of the classification must be looked at as a whole, rather than focusing on one indicative task.
Accordingly, I find that during his employment with the Respondent, the Applicant was employed as classification level FLH5 of the Award.
Full-time or casual employee
A casual employee is defined at cl.10.4(a) of the Award as follows:
10.4 Casual employment
(a) A casual employee is an employee engaged as such and paid by the hour. An employer when engaging a casual must inform the employee that they are employed as a casual, stating by whom the employee is employed, their hours of work, their classification level and their rate of pay.
…
It is clear from the authorities that the concept of a casual employee is ill-defined, is a question of fact, and is a determination dependent on all of the circumstances in the particular case: Doyle v Sydney Steel Co Ltd [1936] HCA 66; (1936) 56 CLR 545.
In Reed v Blue Line Cruises Limited (1996) 73 IR 420 (“Reed”),
Moore J (sitting as the Industrial Relations Court of Australia) said the following of casual employment:[7]
A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.
[7] Reed v Blue Line Cruises Limited (1996) 73 IR 420 at 425.
In Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321
at [35], Barker J observed that:35. … the Full Federal Court said in Hamzy v Tricon International Restaurants [2001] FCA 1589; (2001) 115 FCR 78 (Hamzy), at [38]; namely, that “casual employee” embraces “an employee who works only on demand by the employer” and that “the essence of casualness is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work”.
In Ledger v Stay Upright Pty Ltd [2016] FCA 659 at [61]-[62], Buchanan J said:
61. In Reed v Blue Line Cruises Limited (1996) 73 IR 420 (“Reed”), Moore J (sitting in the Industrial Relations Court of Australia) made some observations about the nature of casual employment to which I referred in Thompson v Big Bert Pty Ltd t/as Charles Hotel [2007] FCA 1978; (2007) 168 IR 309 at [57]. In Reed, Moore J was influenced against a conclusion of casual employment by the apparent regularity and eventual overall period of Mr Reed’s engagement. However, his Honour stressed that he was assigning a meaning to the notion of casual employment for the purpose of the Convention concerning Termination of Employment at the Initiative of the Employer, which was a meaning different, probably, from the meaning for the purpose of award coverage.
62. It is clear that his Honour accepted that the appropriate characterisation of the nature of employment is one which must be determined by reference to what is known at the commencement of the engagement. It must be accepted that, over time, repetition of a particular working arrangement may become so predictable and expected that, at some point, it may be possible to say that what began as discrete and separate periods of employment has become, upon the tacit understanding of the parties, a regular ongoing engagement (for an example of historical interest, see Cameron v Durning [1959] AR (NSW) 142). On the other hand, retention of the same initial arrangements (month-to-month rostering, imprecision of days and hours, timesheets recording actual hours, absences or unavailability at the discretion of the employee) may indicate that the parties have chosen to perpetuate those initial arrangements – i.e. casual engagement with an entitlement to pay arising as and when work is actually performed.
In Hamzy v Tricon International Restaurants [2001] FCA 1589 (“Hamzy”), the Full Court was concerned with the validity of a regulation under the predecessor legislation to the Act. Relevantly, the Full Court said (Hamzy at [38]):
38. In our opinion there is no material difference between the description “employees engaged on a casual basis for a short period”, in s 170CC(1)(c) of the Workplace Relations Act, and the description “a casual employee engaged for a short period”, in reg 30B(1)(d). Both descriptions embrace an employee who works only on demand by the employer (or perhaps only by agreement between employer and employee) over a “short period” (whatever that may be). The essence of casualness is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work. But that is not inconsistent with the possibility of the employee’s work pattern turning out to be regular and systematic.
This line of authority has been distinguished in recent decisions of single Judges of the Federal Court. In Putland v Royans Wagga Pty Limited [2017] FCA 910 at [315]-[317], Bromwich J approved the approach of White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 (“Devine Marine Group”), which considered the designation of casual employment under the relevant Award; in particular, “[a] casual employee is an employee engaged as such”.[8]
[8] Manufacturing and Associated Industries and Occupations Award 2010, cl.14.1.
In Devine Marine Group, in reference Counsel for the Fair Work Ombudsman’s reliance on the decisions in Reed and Hamzy, White J stated (Devine Marine Group at [138], [141], [144]):
138. However, in my opinion, the approach for which the FWO contended is not the correct approach. Regard must be had instead to the definition of “casual employment” in cl 14.1, namely, that a “casual employee is one engaged and paid as such”. That definition is to be understood in the context of the Award as a whole and, in particular, in the context of its provisions concerning full-time and part-time employment.
…
141. The word “engaged” in cl 14.1 of the Award is capable of more than one meaning. On one view, it can refer to the way in which the parties themselves identified their arrangement at its commencement. On another view, it can be a reference to the objective characterisation of the engagement, as a matter of fact and law, having regard to all the circumstances. Support for the former construction is seen in the decision of the Full Bench of the Fair Work Commission in Telum Civil (Qld) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434. The Full Bench said at [38]:
[38] All of the modern awards contain a definition of casual employment. Those definitions, notwithstanding some variation in wording, have the same core criteria:
(i) That the employee was “engaged” as a casual - that is, the label of “casual” is applied at the time of time of engagement; and
(ii) That the employee is paid as a casual, and specifically, the employee is paid a casual loading (set at 25% in all of the modern awards, subject to transitional arrangements), which loading is paid as compensation for a range of entitlements that are provided to permanent employees but not to casual employees.
(Emphasis added)
…
144. It is sufficient in my opinion to state that, in the present case, the former construction draws support from two considerations and should be adopted. First, the term “specifically engaged” in cl 12 indicates that the focus is on the agreement of the parties at the commencement of the employment as to the character of the employment. Secondly, the requirement in cl 14.3 for the observance of formality at the time of engagement of a casual employee suggests that the word “engaged” is directed to the agreement made between the parties rather than to the manner and circumstances in which the employee does in fact carry out his or her work.
Evidence
Both the Applicant and the Respondent introduced documents into evidence which they relied on for the purpose of their argument regarding the basis on which the Applicant was employed.
The Applicant relies on correspondence from Ms Carnachan on behalf of the Respondent, dated 4 September 2016. It commences with the heading, “[t]o whom it may concern”, and relevantly states, “[t]his letter is to confirm that [the Applicant] is employed full time on NZ Mozzies dairy farm by Carnachan Family Trust…”[9]
[9] The Applicant’s Affidavit filed on 13 October 2017, Annexure H.
The Applicant also relies on an application for Worker’s Compensation made in December 2016.[10] In the section completed by the Applicant, he identifies his employment status as full-time. In the section completed by Ms Carnachan, she identifies his employment status as casual.
[10] Ibid Annexure K.
The Respondent relies on the Return to Work Plan dated 27 January 2017, in which the Applicant’s hours prior to his injury are described as “38 hours per week – casual.”[11] This document is signed by Ms Carnachan, but not the Applicant.
[11] The Affidavit of Bernadette Rose Carnachan filed on 26 October 2017, Annexure BRC-3.
The Applicant gave evidence that he was promised ongoing employment, at the conclusion of the lease of the Farm, at the other farms leased by the Trust. However, the Applicant said that because of his injury, the offer was withdrawn, and his employment was terminated when the lease of the Farm had ended.
In cross-examination, the Applicant conceded that he was aware that the Respondent was reducing the size of the milking herd as the end of the lease approached. The Applicant agreed that as a consequence, his hours of work dramatically reduced. The Applicant agreed that on 9 November 2016, he sent a text to the manager of another farm, asking if there was any extra work available around other farms, because milking only was not giving him enough hours on the Farm (Exhibit R1).
The Applicant gave evidence that during the first two weeks of his employment with the Respondent, he worked as a relief milker on another farm leased by the Trust. Thereafter, the Applicant worked only on the Farm. The Applicant said that it was his understanding that he would work permanent days, but the hours each day would vary. There seems to be no dispute that the Applicant and his family were provided with free accommodation at the Farm. The Applicant said that the rental for this accommodation was covered by the days that he worked every second weekend, and he had not included those hours in his claim.
The Applicant gave evidence that during his employment, there were no set hours, no minimum or maximum hours, and that he worked until the work was completed. The Applicant said that he completed timesheets, took a photo of them, and sent them by SMS text message to Ms Carnachan. The Applicant agreed that the hours specified on the pay slips reflected the hours he had inserted into the timesheets, photographed, and sent to Ms Carnachan.
Ms Carnachan gave evidence about the circumstances which led to the advertisement of the position in August 2016. Ms Carnachan said that the Respondent previously had a full-time employee on the Farm. Ms Carnachan said that when they were looking to replace her, they did not want to replace her with a full-time employee because they knew that the hours for the position were gradually going to decrease, as the size of the dairy herd decreased. Ms Carnachan said that is why the position was advertised as casual.
Ms Carnachan said that in addition to sending SMS text messages to the Applicant, she spoke to him about the job and explained that the job was going to be 30 hours per week on average, and that the Respondent did not want anyone for much more, but if he needed more work, the Respondent could possibly have more work for him on its other farms.
When I asked Ms Carnachan whether the discussion included the days of the week the Applicant would work, she said that they did have a discussion. Ms Carnachan said the Respondent was quite flexible, but their preference was for someone who could work for three days per week. This would allow Ms Carnachan and Ms Finnity to milk the cows on the Farm on the other two days of the week. Ms Carnachan said that they also discussed, and agreed that the Applicant would work every second weekend in return for rent-free accommodation on the Farm, with the view that she and Ms Finnity would alternate working the remaining weekends.
Ms Carnachan said that in addition to milking the dairy herd, it was agreed that the Applicant could undertake some general farm duties. She gave an example of spraying the property, but said that it was up to him. Ms Carnachan confirmed that he had informed her of the hours he had worked, and she paid him in accordance with the hours that he said he had worked.
In cross-examination, Ms Carnachan agreed that the SMS text messages advising of the position in evidence did not describe the position as casual. Ms Carnachan confirmed that when she had discussions with the Applicant, she discussed the position being casual. Ms Carnachan said that there was never any discussion of the position being a full-time position.
In submissions, the Applicant said that the nature of the work was such that if something arose that required Ms Carnachan and/or Ms Finnity on one of their other farms, the Applicant would cover them. The Applicant said that he would either be paid for that work, or take time off in lieu. The Applicant said that he could refuse the additional work, or swap if he wanted. I pointed out to him that content of this submission was not given in evidence, and that in any event, his right to refuse to perform additional work was more suggestive of engagement on a casual basis.
Conclusion
I have earlier set out the approach of the Federal Court in determining whether an employee was employed a casual. In Devine Marine Group, White J distinguishes the earlier authorities which focus on the nature of the work performed by the employee, on the basis that the question must be determined having regard to the definition, if any, of a casual employee in the relevant modern award. His Honour was concerned with a clause in a modern award which provided that, “[a] casual employee is one engaged and paid as such”,[12] and which required that, “[an] employer when engaging a casual must inform the employee that they are employed as a casual, stating by whom the employee is employed, the classification level and rate of pay and the likely number of hours required.”[13] It can be seen that the clause considered in Devine Marine Group is in the same terms as cl.10.4 of the Award in this matter.
[12] Manufacturing and Associated Industries and Occupations Award 2010, cl.14.1.
[13] Ibid cl.14.3.
In Devine Marine Group, White J identified two approaches to the word “engaged” in the relevant clause; the former focuses on the way in which the parties identified the arrangement at the commencement of employment, and the latter approach (in my view reflecting the line of authority distinguished by White J) involves an objective characterisation of the engagement, as a matter of fact and law, having regard to all of the circumstances. Justice White preferred the former approach, because the clause in relation to full-time employment provided that a full-time employee was, “[a]ny employee not specifically engaged as being a part-time or casual…”,[14] and because the provision regulating casual employment required a degree of formality.
[14] Ibid cl.12.
In the present case, cl.10.2 of the Award simply provides that a full-time employee “is an employee who is engaged to work 38 hours per week.”
It seems to me that, in the absence of any binding Full Court decision on this point, a cautious approach entails having regard to both the way in which the Applicant and the Respondent identified the arrangement at the commencement of the Applicant’s employment, and to the objective characterisation of the engagement in the circumstances of the case.
I am satisfied that the arrangement agreed upon by the Applicant and the Respondent was that he would work three days a week and every alternate weekend, and that his primary role was the milking of the dairy herd, but that he could undertake other farm duties as he saw fit. I am satisfied that the arrangement understood by the parties at the commencement of the Applicant’s employment was that he would work on particular days, but that he would work the hours necessary to perform his duties. Ms Carnachan has said that she hoped that his hours would be an average of 30 per week. The evidence is that the Applicant set the hours he actually worked, in the sense that he would inform Ms Carnachan of his hours, and she paid him accordingly. These hours are reflected in the pay slips issued to the Applicant over the course of his employment.
The Applicant’s weekly hours recorded in the pay slips were overwhelmingly in excess of the 30 hour average each week; more often than not, the hours recorded each week ranged from 46 to 64 hours a week. The hours worked by the Applicant varied from week to week. There is no pattern in the Applicant’s weekly hours of work that emerges from the pay slips issued to the Applicant.
The Applicant was paid a flat amount of $25 per hour for the hours that he worked, over his three days per week. The Applicant received free accommodation on the Farm for milking the dairy herd each alternate weekend. The Applicant entered into an informal arrangement with Ms Finnity that he would milk the dairy herd on one of the weekdays, and she would milk the dairy herd on a Saturday when the Applicant played cricket.
In addition to work on the Farm, there was an understanding that the Applicant might have work on the other farms leased by the Trust. For the first two weeks of his employment, the Applicant worked as a relief milker on one of those other farms. The understanding that the Applicant might work on other farms in the future failed to come to fruition, largely because of the Applicant’s workplace injury which prevented him from performing his key role of milking the dairy herd.
The parties understood that the employment of the Applicant on the Farm would finish with end of the lease of the Farm. The parties also understood that the number of milking cows would diminish over that period of time.
I am not satisfied that there was any discussion between the Applicant and the Respondent’s representative about the basis upon which he would be employed. It seems to me that the discussion was largely involved the nature of the work, and the parameters within which the Applicant would work.
As to the question of whether the Applicant was a casual or full-time employee, I have not found the “[t]o whom it may concern” correspondence prepared by Ms Carnachan on 4 September 2016 to be persuasive. I have accepted Ms Carnachan’s evidence that she unwisely, and erroneously, stated that the Applicant worked full-time in order to assist him to obtain a grant. I have not been assisted by the Worker’s Compensation application completed by the Applicant and Ms Carnachan. Furthermore, the Return to Work Plan dated 27 January 2017 (which describes the Applicant as a casual) is not probative evidence in circumstances where the only signature on that document is that of Ms Carnachan. I note the Applicant was not cross-examined about this document.
I am satisfied that, although the Respondent did not do what was required of it under cl.10.4(a) of the Award, the way in which the parties identified the arrangement at the commencement of employment is conclusive that the Applicant was engaged as a casual employee, and paid by the hour.
Furthermore, I am satisfied that an objective characterisation of the Applicant’s engagement was as a casual employee. The Applicant may have been employed to, and did work three days a week and each alternate weekend on the Farm, but the hours of work were set by him and accepted by the Respondent. Aside from the milking of a diminishing number of dairy cows in the morning and the evening, the Applicant was at large to perform duties that he believed ought to be done. The Applicant estimated the time that each of these duties would require, and was paid for the hours that he said he worked. Other than the period leading up to the Applicant’s workplace injury, the hours that the Applicant said he worked each week exceeded the expectations of the Respondent by a number that was not insignificant. His weekly hours as reflected in the pay slips issued by the Respondent to the Applicant, varied from week to week. I have found that there was no systematic pattern of hours worked on a weekly basis.
Accordingly, I find that during his employment with the Respondent, the Applicant was engaged as a casual.
As the Applicant was engaged as a casual, he was not entitled to annual leave or annual leave loading: cl.10.4(d) of the Award.
Entitlement to overtime
Clause 31.3 of the Award provides:
31.3 No employee will be entitled to payment for overtime, or equivalent time off instead, unless the employee makes a claim to the employer or their authorised representative either within two weeks after the overtime is alleged to have been performed or by the next date of payment of the employee’s wages, whichever is the later.
When I directed his attention to cl.31.3 of the Award, the Applicant submitted that he made a claim for overtime by email on 4 April 2017. The Applicant said that he did not have a copy of the email with him. Ms Finch for the Respondent pointed out that, from 1 January 2017 onwards, the Applicant was on light duties, and did not work any overtime during that time. The Applicant conceded that during the last two weeks of his employment, he was not working overtime because he was still on light duties.
Consequently, I find that the Applicant did not make a claim to the Respondent within two weeks after the overtime that he alleged he had performed, and therefore, is not entitled to payment for overtime.
Section 117 of the Act - payment in lieu of notice on termination
The Applicant has claimed one week of payment in lieu of notice on termination of his employment under s.117 of the Act.
The entitlement of an employee to payment in lieu of notice is subject to the provisions of s.123 of the Act which relevantly provides at
sub-s.(1)(c):
(1) This Division does not apply to any of the following employees:
…
(c) a casual employee;
…
I find that, as the Applicant was engaged as a casual employee, he is not entitled to the benefits of payment in lieu of notice under s.117 of the Act.
Conclusion
As I have found against the Applicant in relation to each of his claims, I will make an order dismissing his application.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 8 March 2018
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