Gulliver v Curtin University of Technology
[2017] FCCA 2822
•20 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GULLIVER v CURTIN UNIVERSITY OF TECHNOLOGY | [2017] FCCA 2822 |
| Catchwords: WORDS AND PHRASES – “is entitled”. |
| Legislation: Conciliation and Arbitration Act 1904 (Cth), s.5(1)(b) Fair Work Act 2009 (Cth), ss.340, 341, 342 Fair Work Bill 2008 (Cth), Explanatory Memorandum |
| Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd [2002] FCA 528; (2002) 114 IR 165; (2002) Aust Tort Reports 81-655 Australian Nursing Federation v Alcheringa Hostel Incorporated [2004] FCA 375; (2004) 136 FCR 530; (2004) 138 IR 122; (2004) 54 AILR 100-204 Australian Workers’ Union v BHP Iron-Ore Pty Ltd [2001] FCA 3; (2001) 106 FCR 482; (2001) 102 IR 410; (2001) 49 AILR 4-396 Burnie Port Corporation Pty Ltd v Maritime Union of Australia [2000] FCA 1768; (2000) 104 FCR 440; (2000) 103 IR 153; (2000) 49 AILR 4-366 CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 139 CLR 449; (1977) 51 ALJR 715; (1977) 14 ALR 485 Construction, Forestry, Mining and Energy Union v Eco Recyclers Pty Ltd [2013] FCA 24 Greater Dandenong City Council v Australian Municipal, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232; (2001) 111 IR 121; (2001) 184 ALR 641 Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178; (2012) 228 IR 399; (2012) 65 AILR 101-809 Leontiades v FT Manfield Pty Ltd (1980) 43 FLR 193 Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 Moss & Ors v Fantil Pty Ltdt/a Central Coast Security Services (1994) 58 IR 118 Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 |
Thomson Reuters, National Workplace Relations (looseleaf)
| Applicant: | ROSS GULLIVER |
| Respondent: | CURTIN UNIVERSITY OF TECHNOLOGY |
| File Number: | PEG 461 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 6 April 2016 |
| Date of Last Submission: | 6 April 2016 |
| Delivered at: | Perth |
| Delivered on: | 20 November 2017 |
REPRESENTATION
| For the Applicant: | Mr A Cousner, National Tertiary Education Union |
| Counsel for the Respondent: | Mr DC Heldsinger with Ms RC Miller |
| Solicitors for the Respondent: | Heldsinger Legal |
DECLARATION AND ORDERS
THE COURT DECLARES that Mr Gulliver was not entitled to the benefit of clause 15.5.2 of the Curtin University Academic, Professional and General Staff Enterprise Agreement 2012-2016 in relation to the grant of continuing appointment status thereunder, and therefore did not have a workplace right for the purposes of s.341(1)(a) of the Fair Work Act 2009 (Cth) at any material time.
THE COURT ORDERS that the matter be adjourned to a directions hearing at 9.45am on 7 December 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 461 of 2015
| ROSS GULLIVER |
Applicant
And
| CURTIN UNIVERSITY OF TECHNOLOGY |
Respondent
REASONS FOR JUDGMENT
Introduction
The Court has before it an interlocutory application (made orally and subsequently set out in written submissions) by the respondent, the Curtin University of Technology (“University”) to dismiss an Originating Application (“Application”) under the Fair Work Act 2009 (Cth) (“FW Act”) by the applicant Ross Gulliver (“Mr Gulliver”). The Application alleges contravention of a general protection under the FW Act. The University says that the Application should be dismissed for want of jurisdiction.
The University filed no Response, but rather orders were made that outlines of submission be filed by the University and Mr Gulliver in relation to the University’s oral interlocutory application challenging the existence of a workplace right in respect of the alleged contravention of a general protection.
Issue
The key issue in these proceedings is whether Mr Gulliver was entitled to the benefit of clause 15.5.2 of the Curtin University Academic, Professional and General Staff Enterprise Agreement 2012-2016 (the “Agreement”), as required by s.341(1)(a) of the FW Act, and therefore had a workplace right for the purposes of s.341(1)(a) of the FW Act.
The Application
In the Application Mr Gulliver alleges as follows:
4. The Applicant was employed by the Respondent from approximately July 2011.
5. From July 2011 until approximately March 2012 the Applicant was employed under a series of fixed term contracts in accordance with clause 15 of the Curtin University Academic, Professional and General Staff Enterprise Agreement 2012-2016 (the Agreement) or the predecessor clauses to clause 15 of the Agreement.
6. From approximately March 2012 to August 2012 the Applicant was employed by the Respondent in a casual capacity.
7. From 27 August 2012 to 5 June 2015 the Applicant was engaged on a continuous string of 18, clause 15 of the Agreement, fixed term contracts.
8. Within clause 15 of the Agreement is a provision that employees that meet the described criteria must be converted to ongoing employment described in clause 14 of the Agreement.
9. The criteria for conversion of employment from fixed term to ongoing is described at clause 15.5 of the Agreement.
10. At all material times the Applicant was entitled to the protections of section 340 of the FairWorkAct2009 (the Act).
Application for Conversion
11. In February 2015, the Applicant enquired with his line manager about the possibility of being converted in accordance with clause 15.5 of the Agreement.
12. Prior to 27 February 2015, the Applicant made a formal request to be converted to an ongoing position.
13. On 27 February 2015, the Respondent informed the Applicant that he had been unsuccessful in applying for conversion.
14. In making the application to be converted to an ongoing position the Applicant made an inquiry for enforcement of a workplace right conferred by the Agreement.
15. The Applicant intended to apply for conversion once the missing criteria under the Agreement was met.
16. This is a workplace right under section 341 (1) (a) of the Act.
The Dispute
17. On 8 April 2015 the Applicant through the National Tertiary Education Union (NTEU) raised a dispute in accordance with clause 68 of the Agreement.
18. The dispute related to the Respondent’s failure to convert the Applicant to an ongoing position.
19. Instigating the dispute under clause 68 of the Agreement is the exercise of a workplace right under section 341 (1)(b) as defined in section 341 (2)(j) of the Act.
Adverse Action
20. On 22 May 2015 the Applicant was not offered a further Fixed term contact.
21. The Applicant was instead offered a casual contract under the Agreement with no hours attached.
22. Of the relevant staff offered employment at that time, only the Applicant was offered a casual position. Other staff were offered renewed fixed term contracts.
23. This failure to offer the Applicant a further fixed term contract is an adverse action pursuant to section 342 (1) 1 (a) of the Act.
24. The action of the Respondent has injured the Applicant in his employment.
25. Further and in the alternative the Respondent has altered the Applicants position to his detriment in the way described at section 342 (1) 1 (b) of the Act.
26. Further and in the alternative the Respondent has discriminated against the Applicant as a prospective employee in the terms and conditions of his employment offered compared to other employees engaged at the material time. This is adverse action pursuant to section 342 (1) 2 (b) of the Act.
27. The Applicant alleges that part of the reason the Respondent has taken the adverse action pleaded at paragraph 17 and 18 is because the Applicant has exercised a workplace right pleaded above at paragraphs 13 to 15.
28. This is a breach of section 340 (1)(a)(ii).
29. The Applicant alleges that part of the reason the Respondent has taken the adverse action pleaded at paragraph 17 and 18 is because the Applicant proposes to exercise a workplace right pleaded above at paragraphs 13 to 15.
30. This is a breach of section 340 (1)(a)(iii).
31. The Applicant further alleges, that part of the reason the Respondent has taken the adverse action pleaded at paragraph 17 and 18 is to prevent the Applicant from exercising a workplace right.
32. This is a breach of section 340 (1)(b).
(Copied verbatim from the Application).
The Application seeks:
a)compensation by way of loss of wages;
b)the imposition of a pecuniary penalty;
c)orders that the University has breached s.340(1)(a)(ii) and (iii) and (b) of the FW Act;
d)costs; and
e)any other order that the Court deems appropriate.
Facts
The following are agreed facts:
a)Mr Gulliver was employed under the Agreement and a series of common law contracts;
b)between 27 April 2013 and 5 June 2015, Mr Gulliver was employed on eight short common law fixed term contracts (“the Fixed Term Period”) as follows:
i)from 27 April 2013 to 5 July 2013;
ii)from 6 July 2013 to 28 September 2013;
iii)from 29 September 2013 to 14 February 2014;
iv)from 15 February 2014 to 18 April 2014;
v)from 19 April 2014 to 4 July 2014;
vi)from 5 July 2014 to 14 November 2014;
vii)from 15 November 2014 to 27 February 2015; and
viii)from 28 February 2015 to 5 June 2015;
c)prior to the commencement of the Fixed Term Period (on 27 April 2013), Mr Gulliver was employed on a casual or sessional employment basis from 18 July 2011. However, due to the operation of specific terms in the Agreement, it is only the Fixed Term Period that is relevant;
d)Mr Gulliver’s employment ended on 5 June 2015 on expiry of the last fixed term contract;
e)the Fixed Term Period runs from 27 April 2013 to 5 June 2015; and
f)it is not in dispute that the Fixed Term Period is less than 3 years.
FW Act provisions
Section 341(1)(a) of the FW Act deals with the “Meaning of a workplace right” and provides as follows:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, a workplace instrument or order made by an industrial body; or
Relevant provisions of the Agreement
Clause 15.5 of the Agreement is the relevant provision in the Agreement, and relevantly provides as follows:
15.5 Conversion of Fixed Term Staff Members to Continuing Status
…
15.5.2 Where a Staff Member has been engaged on 2 or more consecutive Fixed Term Appointments in the same Faculty or Area over a period of 3 or more years, they will be eligible to apply for, and will be granted, Continuing Appointment status, provided that the Staff Member:
a) is undertaking work of a continuing nature;
b) was appointed through a merit selection process for at least one of the Fixed Term Appointments; and
c) is not the subject of an Unsatisfactory Work Performance process.
Case law
In Burnie Port Corporation Pty Ltd v Maritime Union of Australia [2000] FCA 1768; (2000) 104 FCR 440; (2000) 103 IR 153; (2000) 49 AILR 4-366 (“Burnie”) the Full Court of the Federal Court of Australia was required to determine whether s.298L(1)(h) of the Workplace Relations Act 1996 (Cth) (“WR Act”) was concerned only with a present, rather than prospective, entitlement to the benefit of an industrial instrument or order. Burnie dealt with precisely the same phrase at issue in this case, namely the words “is entitled to the benefit of”.
At issue in Burnie was whether the appellant Corporation was in contravention of s.298K of the WR Act by its failure to employ a Mr Rolls (represented by the Maritime Union of Australia (“the MUA”)) after Mr Rolls had refused to be employed under an Australian Workplace Agreement (“AWA”) which was the Corporation’s preferred employment instrument. Most employees were employed under individual AWAs or under one of two enterprise bargaining agreements (“EBAs”) in place between the Corporation and the MUA, and it was on this basis that the MUA contended that the Corporation had denied the prospective employee, Mr Rolls, an entitlement to the benefit of an industrial instrument or an order of an industrial body, namely, one of the EBAs. It was agreed that Mr Rolls was not yet an employee of the Corporation. The Corporation therefore asserted that the MUA was not able to satisfy the statutory requirement that employment be refused by reason of an existing entitlement under an industrial instrument or order.
In Burnie the Full Court of the Federal Court observed that “the appeal raises the important question of whether s.298L(1)(h) of the WR Act is only concerned with a present or existing, rather than a contingent or prospective, entitlement to the benefit of an industrial instrument or order”: Burnie at [22] per Wilcox, Kiefel and Merkel JJ. The Full Court of the Federal Court held that:
a)the “ordinary and natural meaning” of the phrase “is entitled to the benefit of” in s.298L(1)(h) of the WR Act was that “when the proscribed conduct occurs, the person concerned has, or enjoys, a present or existing legal entitlement to the benefit of an industrial instrument or order”, and added that the “benefit might relate to the proposed employment or might have resulted from prior employment, but at the time of the proscribed conduct it must be a benefit to which the person concerned is entitled”: Burnie at [23] per Wilcox, Kiefel and Merkel JJ; and
b)“[t]he careful use of terms in s.298L of the WR Act suggests that when the legislature used the words “is entitled” in s.298L(1)(h) of the WR Act “it intended to refer to a present or existing, rather than a future or prospective, entitlement”: Burnie at [24] per Wilcox, Kiefel and Merkel JJ.
In Burnie the Full Court of the Federal Court of Australia rejected the MUA’s reliance on the decision of the Industrial Court of New South Wales in Moss & Ors v Fantil Pty Ltdt/a Central Coast Security Services (1994) 58 IR 118 (“Moss”), which concerned applications for orders pursuant to s.482 of the Industrial Relations Act 1991 (NSW) and in which the meaning of the words “is entitled” in the context of claims alleging victimisation was considered. The part of Moss relied on by the MUA in Burnie was a statement that: “For example, if an employer required an employee working under an award legally applicable to him to perform work on overtime and the employee stated that he would work overtime provided that he was paid the overtime rates prescribed therefor by the award and the employer stated that he was not prepared to pay those rates and would pay only lower ones and the employee continued to press his claim and the employer then dismissed him for that reason, then, it would seem to me, that it would be difficult to contend that the case was not within s.481(1)(e)”: Moss at 124 per Hill J, and that “while the entitlement must be an existing one, it may be either vested or contingent. It must, of course, arise out of an award legally applicable to the employment and the work in question”: Moss at 124 per Hill J.
In Burnie at [30] per Wilcox, Kiefel and Merkel JJ it was said that the overtime example in Moss:
a)“shows that a person may be entitled to the benefit of an industrial instrument notwithstanding that the person has only a contingent entitlement to the payment of a particular benefit which is payable under the instrument on the occurrence of an event such as the actual working of overtime hours”; and
b)“[i]n that example, the reason the person is entitled to payment for overtime work in accordance with the industrial instrument is that, prior to the work being carried out, the person had a present and existing entitlement to be paid at the rate prescribed by that instrument in the event of working overtime hours. That entitlement crystallised into an entitlement to be paid the money required by the industrial instrument when the overtime hours were actually worked. That is different from the case of a person who is not entitled to any benefit under an industrial instrument until a particular event occurs, such as becoming employed”.
In Australian Nursing Federation v Alcheringa Hostel Incorporated [2004] FCA 375; (2004) 136 FCR 530; (2004) 138 IR 122; (2004) 54 AILR 100-204 (“Alcheringa Hostel”) the Federal Court was required to consider the proper meaning of “is entitled to the benefit of” under s.298L(1)(h) of the WR Act. In Alcheringa Hostel one of the applicants claimed that she was dismissed by the employer for a prohibited reason, including that she was entitled to the benefit of an industrial instrument, namely the relevant industrial award. Citing Burnie, the Federal Court found that the particular applicant was not covered by the relevant award at the time of her dismissal (because at that time, she had not met all of the requirements to be a registered nurse under the relevant award), and so she was therefore not entitled to the benefits of the relevant award: Alcheringa Hostel at [39] per Ryan J.
In Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd [2002] FCA 528; (2002) 114 IR 165 (“Liquorland”), the Federal Court also endorsed the approach taken in Burnie to the construction and meaning of s.298L(1)(h) of the WR Act, specifically the phrase “is entitled to the benefit of”, finding that the correct construction is to assess what the employee’s “then existing entitlements” are under the relevant industrial instrument: Liquorland at [25] per Cooper J.
In Greater Dandenong City Council v Australian Municipal, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232; (2001) 111 IR 121 (“Dandenong City Council”) the approach in Burnie was approved: Dandenong City Council at [124] and [128] per Merkel J, and it was affirmed that “the fact of an entitlement to the benefit of an instrument or order is of little or no relevance to any particular employee, until the entitlement is linked to the content of a particular entitlement arising under the provisions of the instrument or order”: Dandenong City Council at [128] per Merkel J.
In Australian Workers’ Union v BHP Iron-Ore Pty Ltd [2001] FCA 3; (2001) 106 FCR 482; (2001) 102 IR 410; (2001) 49 AILR
4-396 at [68] per Kenny J (“AWU”) the Federal Court said that it had been held in Burnie that s.298L(1)(h) of the WR Act “… relates to a benefit to which an employee is entitled at the time of the impugned conduct. It does not relate to prospective entitlements”: AWU at [68] per Kenny J.
In Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178; (2012) 228 IR 399; (2012) 65 AILR 101-809 (“Klein”), the Federal Court cited Burnie and Liquorland as authority for the proposition that under s.342(1) of the FW Act “an employee’s position is to be taken at the time the conduct occurred and is to be assessed by reference to the employee’s then existing entitlements under the relevant industrial instrument”: Klein at [86] per Gordon J.
In Construction, Forestry, Mining and Energy Union v Eco Recyclers Pty Ltd [2013] FCA 24 (“Eco Recyclers”) the Federal Court:
a)cited Dandenong City Council with approval: Eco Recyclers at [43] per Bromberg J, in referring to the fact of the existence of an industrial agreement and its content and said “[I]t is not only the fact of the existence of an industrial agreement but also the content of that agreement that may constitute a “workplace right” within the meaning of the expression in section 341(1) of the FW Act”: Eco Recyclers at [43] per Bromberg J; and
b)said that “the proper approach to the words “entitled to the benefit of” in s.341(1)(a) of the FW Act is that they protect against conduct motivated by the fact that an industrial instrument or order applies to the person against whom ‘adverse action’ is taken, as well as where the motivation to engage in the “adverse action” arises because of the content of the instrument or order”: Eco Recyclers at [43] per Bromberg J.
Submissions
The University’s submissions
The University submitted as follows:
a)on 20 February 2015 (during his penultimate fixed term contract), Mr Gulliver made an application for conversion pursuant to the terms of cl.15.5.2 of the Agreement;
b)in response, on 27 February 2015, the University informed Mr Gulliver in writing that his application for Conversion could not be approved as he did not meet the requirements for conversion under cl.15.5.2 of the Agreement;
c)the specific requirement Mr Gulliver did not meet was the three year employment period required that would allow him eligibility to make the application for conversion;
d)in these circumstances, the University denies that Mr Gulliver could be, or was, exercising a “workplace right” under s.341(1)(a) of the FW Act;
e)in the absence of a “workplace right” the Court has no jurisdiction to hear Mr Gulliver’s claim;
f)Mr Gulliver admits that his employment in the Fixed Term Period was less than three years. Paragraph 15 of Part G of the Application states:
The Applicant intended to apply for conversion once the missing criteria [sic] under the agreement was met
(emphasis added by University);
g)the missing criterion is the third limb of the threshold requirements namely the requirement to have over three years or more of “Fixed Term Appointments”. The University does not dispute that Mr Gulliver satisfied the first two limbs of the threshold requirements;
h)in paragraph 11 of Part G, Mr Gulliver asserts that he made an inquiry “about the possibility of being converted in accordance with clause 15.5 of the Agreement” and then “Prior to 27 February 2015, he made a formal request to be converted to an ongoing position”: Application, Part G, paragraph 12 (emphasis added by University);
i)it cannot be disputed that Mr Gulliver did not meet the third limb of the threshold requirements and was therefore ineligible to make an application for conversion;
j)Mr Gulliver’s claim is (at its core) that he intended to make an application for conversion once the threshold requirements were met. He describes it as a “possibility”;
k)in paragraph 15 of Part G of the Application, Mr Gulliver says that he “intended to apply” and this appears to rest entirely on the proposition that Mr Gulliver’s “workplace right” was in the nature of some kind of a ‘contingent’ right, which is misconceived for the reasons set out below;
l)that Mr Gulliver’s assertion that a “workplace right” exists is misconceived and has no, or no proper, legal basis, and is therefore open to challenge because:
i)that, as a matter of law, the assertion is not properly supported by the authorities, alternatively, that the weight of the authorities favours the view that no ‘workplace right’ exists; and
ii)even if it is arguable on the authorities that a ‘workplace right’ may include some kind of ‘contingent’ right (which is denied), that cannot be established on a proper application of the law to the particular facts in this case,
and therefore, no “workplace right exists”.
The University further submitted that:
a)in the overtime example discussed in Moss and Burnie, the employee’s entitlement is based on the fact that the employee is currently working under a particular instrument (for example, an award) which requires payment of overtime hours worked at a higher rate automatically by operation of law under that award. It follows that, in that particular case, the employee has a “contingent” right to be paid overtime and that right crystallises when the employee actually works overtime;
b)that entitlement is not conditional on any particular event occurring, is nascent by nature and “crystallises” into an entitlement to be paid at the time the overtime hours are worked;
c)the “contingent” right to be paid overtime arises from the content of the award as arguably do many other rights under the award. It follows that any action taken by an employer (to the extent it is found to be ‘adverse action’) the effect of which is to deny the employee the ability to crystallise that right would be potentially in breach of s.341(1)(a) of the FW Act, and that is why in Moss it was held that if an employee presses a claim for payment at the overtime rates (should the employee work overtime) then the employee would be protected against victimisation for pressing payment at the overtime rate to which the employee would have become entitled but for the victimisation;
d)the key distinguishing feature in the overtime example is the unconditional nature of the entitlement compared to circumstances in which an entitlement is conditional;
e)the scenario in Moss is to be distinguished from scenarios which involve a particular event (as this is conditional);
f)in Burnie, the particular event was that the employee claiming the “benefit of” a particular instrument had to become employed to enjoy the benefit of that instrument. In other words, the entitlement is conditional and is only actualised (becomes a benefit) when the condition (employment) is satisfied; and
g)a key practical and legal distinction between the overtime example and a particular event requirement is that the nature of the entitlement in the former is absolute (overtime rate paid when overtime worked) and the latter is conditional (when the particular event occurs).
The University’s submissions also address the question of whether Burnie is still good law. In this regard the University notes that:
a)there is commentary in Thomson Reuters, National Workplace Relations (looseleaf) at 3–3057 (“Commentary”), which appears to offer alternate views of the current legal position on the interpretation of “is entitled to the benefit of”, and which specifically states that:
[I]t appears also that the limb in s 341(1)(a) referring to “entitle[ment] to the benefit of … a workplace law, instrument or order of an industrial body” includes benefits that are contingent or accruing, such as long service leave: Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (“FW Bill”), para [1363].
b)the Commentary then adds that “[G]iven these comments, the authority of Burnie which established (under a predecessor to the current provision) that the provision applied only to present or existing entitlements is questionable”;
c)the Commentary moves onto a brief discussion of Eco Recyclers again drawing the distinction between the fact of the existence of an industrial instrument and its content;
d)there is no support to be found in Eco Recyclers for the assertion made in the Commentary;
e)it is unclear what is meant by the term “questionable” given that Eco Recyclers did not cite Burnie and the other authorities that have approved and followed Burnie, nor was it indicated that Burnie and those judgments that followed it were wrong;
f)the comments in the Explanation Memorandum to the Fair Work Bill 2008 (Cth) (“Explanatory Memorandum”) which states at [1363] that, “a benefit under a workplace law or workplace instrument is also intended to include benefits that are contingent or accruing (e.g. long service leave (LSL))” must necessarily be treated with caution given the paucity of detail it contains, but even if reliance were to be placed on this statement in the Explanatory Memorandum, the University submits that it is entirely in keeping with the logic contained in the decisions in Burnie and Moss for the following reasons:
i)LSL has elements that are necessarily ‘accrual’ and ‘contingent” in nature in that LSL is a right that accrues over time and is contingent upon a specific legislated temporal milestone, and is on all fours with the overtime example because the right to LSL crystallises on the occurrence of a particular temporal event; and
ii)the LSL right is absolute (not conditional) and arises automatically by operation of law under the legislation referred to in Moss, and it follows (as with the overtime example) that an employer who takes action the effect of which was to deny an employee their LSL entitlement would potentially be in breach of s.341(1)(a) of the FW Act; and
g)the ‘contingent’ right to LSL is different from factual scenarios that involve an entitlement that arises in the case of a particular event, given the conditional nature of that entitlement; and
h)Burnie remains good law and should be applied. Further, or alternatively, the University submits that the weight of the current authorities favours the logic and the legal principle established by Burnie and there is currently no reason to depart from the principles established by Burnie.
Mr Gulliver’s submissions
Mr Gulliver submitted that:
a)the University is correct that there is no contest that Mr Gulliver did not meet the required “3 or more year” period set out in cl.15.5.2 of Agreement required for conversion to an ongoing position;
b)the University’s argument that, as a matter of law, there is no workplace right owed or accrued by Mr Gulliver, and that the Court has no jurisdiction to hear the Application, is disputed;
c)the University’s argument that, even if there is a workplace right owed or accrued by Mr Gulliver the facts of this Application do not bear out Mr Gulliver’s cause of action is more closely related to a summary judgment application rather than an objection as previously outlined by the University, and to be successful there would need to be evidence put before the Court to determine this matter which is not within the scope of the current directions of the Court;
d)in the University’s argument significant energy has been devoted to showing that there is no workplace right as pleaded in paragraphs 11-16 of the Application, but there was no mention of the other workplace rights pleaded at paragraphs 17-19 in the Application, and so even if the Court is minded to agree with the University’s submission that there is no workplace right arising in relation to the application for conversion, the Application will survive as the additional workplace rights that are pleaded do not appear to be challenged by the University;
e)Mr Gulliver pleaded the following workplace rights:
i)at paragraphs 11-16 of the Application Mr Gulliver pleaded that he had the benefit of a workplace existing under a workplace instrument; and
ii)at paragraphs 17-19 the of the Application Mr Gulliver pleaded that he participated in a dispute settling procedure contained in the Agreement;
f)the application of Burnie should be rejected here, and in particular the statement in Burnie at [24] per Wilcox, Kiefel and Merkel JJ that:
The careful use of terms in s298L suggests that when the legislature used the words “is entitled” in s298L(1)(h), it intended to refer to a present or existing, rather than a future or prospective, entitlement
relates to a legislative framework that is significantly different to that which the Court now finds itself;
g)the reasoning used in Burnie is expressly contradicted by the legislative intent of s.341 of the FW Act, as set out in the Explanatory Memorandum where it states as follows:
1363. A benefit under a workplace law or workplace instrument is also intended to include benefits that are contingent or accruing (e.g., long service leave).
h)where there is contradictory evidence of the intention of the legislature, case law predating the FW Act cannot be relied upon for the interpretation of s.341 of the FW Act, despite the similarity in wording it bears to s.298L of the WR Act;
i)as evidenced by the Explanatory Memorandum of the FW Bill contingent and accruing rights were directly within the contemplation of the legislature at the time that s.341 of the FW Act became law;
j)the Court should reject the finding in Burnie and look to the Explanatory Memorandum in determining the best construction of the section;
k)the other cases that the University relies upon in the Burnie line are unhelpful in resolving the issue of whether there is an applicable workplace right;
l)in Klein the Federal Court noted, as the University has stated in its submission, that “an employee’s position is to be taken at the time the conduct occurred and is to assessed by reference to the employee’s then existing entitlements under the relevant industrial instrument”: Klein at [86] per Gordon J, and this passage is helpful in determining how best to construct the words in s.341 of the FW Act;
m)the Court should read cl.15.5.2 of the Agreement to mean those rights that exist under the Agreement, and not those that are accrued or where all preconditions have already been met;
n)the interpretation put forward by the University would have the effect of limiting the operation of s.341 of the FW Act to something less than the legislators intended as evidenced by the Explanatory Memorandum, and by way of example:
i)if an expecting parent informed the University that they intended to access parental leave, an entitlement under the Agreement, prior to the point of actually taking the parental leave and prior to actually taking the leave, at the point where all contingencies are met and the expecting parent is going on that leave, the University terminated their employment, by the University’s argument this would not be adverse action; and
ii)this would be because the right to take parental leave had not yet crystallised. Notwithstanding the fact that this is an existing right under the Agreement and is one that is contingent upon certain conditions being met;
o)there is no basis in law for the University’s proposition that in circumstances where accruing or contingent rights exist under the Agreement, the University is permitted to alter the position of its employees to their detriment because those contingent rights under the Agreement have not yet crystallised;
p)this is the reason why the legislators intended to include accruing and contingent rights within the scope of s.341 of the FW Act, to prevent this type of situation from occurring; and
q)the objections made by the University should be dismissed.
The University’s submissions in reply
The University submitted in reply that:
a)it is incorrect and misconceived to describe the University’s argument that no workplace right arises on the facts as being more closely related to a summary judgment application. Rule 13.07 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides as follows:
(1) This rule applies if, in a proceeding:
(a) in relation to the whole or part of a party's claim there is evidence of the facts on which the claim or part is based; and
(b) either:
(i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part; or
(ii) the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part.
...
which are separate and distinct criteria to the University’s argument;
b)there is currently sufficient material before the Court to enable it to make a determination as to whether a workplace right arises on the facts;
c)in relation to Mr Gulliver’s argument that an extant workplace right remains even if the University’s argument is upheld by the Court, Mr Gulliver submits that:
i)Mr Gulliver initiated a dispute on 8 April 2015 in accordance with clause 68 of the Agreement (“Dispute”);
ii)the Dispute followed Mr Gulliver’s earlier application for conversion which was unsuccessful. The application for conversion was made prematurely as it did not meet a threshold requirement (which is not disputed);
iii)the Dispute is predicated on Mr Gulliver’s ability to establish a “workplace right” as a matter of law - it cannot operate in a legal vacuum;
iv)section 341(1)(b) of the FW Act states that Mr Gulliver has a “workplace right” but only if he “is able” to initiate the Dispute and, at the time the Dispute was initiated (8 April 2015), Mr Gulliver had not met the threshold requirements and had no right to make the application for conversion let alone initiate the Dispute over a right that did not yet exist;
v)Mr Gulliver’s reliance on s.341(1)(a) and (b) of the FW Act is predicated on him having met the threshold requirements, which he did not; and
vi)therefore, Mr Gulliver’s assertion that he had a “workplace right” under s.341(1)(a) and or (b) of the FW Act was misconceived and wrong in law;
d)Burnie remains good authority;
e)the alleged ‘contradiction’ in legislative intent described by Mr Gulliver is not relevant. This is because the legislative intent as informed by the Explanatory Memorandum is only a “secondary source” of law. The common law position as established in Burnie, and subsequently followed by the weight of the authorities, constitutes a “primary source” of law;
f)the High Court in Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 139 CLR 449; (1977) 51 ALJR 715; (1977) 14 ALR 485 at [3] per Murphy J said that:
If a statute is unambiguous according to the ordinary rules of interpretation, recourse should not be had to parliamentary history (unless there are very exceptional circumstances)…Otherwise, what is reasonably certain may become questionable.
g)section 341 of the FW Act is unambiguous and subsequently does not require reference to or reliance on the Explanatory Memorandum, and, in addition, there are no “exceptional circumstances” made out in this case;
h)the authorities relating to the former provision contained in the WR Act” should still be considered good law. This is principally because the judiciary in the case law subsequent to the enactment of the FW Act has relied upon, and maintained reference to, the authorities (including Burnie) concerning that former provision in the WR Act;
i)the passage relied upon by Mr Gulliver and taken from Klein at [86] per Gordon J is entirely apt, as it cites Burnie as authority for the proposition that “an employee’s position is to be taken at the time the conduct occurred and is to be assessed by reference to the employee’s then existing entitlements under the relevant industrial agreement, and when the proposition contained in this passage is properly applied to the facts in this case, it is evident that, at the time the conduct occurred, Mr Gulliver did not possess the “relevant existing entitlements” which would enable him to assert a “workplace right”;
j)it is not until the three threshold requirements under cl.15.5.2 of the Agreement are met that the “workplace right” to make the application for conversion under the Agreement comes into existence;
k)put another way, at the time the conduct occurred (February 2015) Mr Gulliver had no right to make the application for conversion: see Klein and Burnie, and, therefore, Mr Gulliver’s “existing entitlements” at that time did not include making the application for conversion; and
l)the example in Mr Gulliver’s Submissions of an expecting parent, sits comfortably with the University’s analysis of a workplace right, because Mr Gulliver correctly identifies the point at which the “workplace right” is actualised, namely, to use Mr Gulliver’s own words “the point where all the contingencies are met and the expecting parent is going on that leave.” In other words, the “workplace right” is conditional on the parent being in an “expecting” position and meeting all the other “contingencies” that are required to actualise the “workplace right”.
Consideration – is there a workplace right?
Under the terms of the Agreement an employee (such as Mr Gulliver) must fulfil certain threshold requirements before becoming eligible to make an application to convert to continuing appointment status. Clause 15.5.2 of the Agreement sets out those requirements as follows:
a)two or more consecutive “Fixed Term Appointments”;
b)in the same faculty or area; and
c)over a period of three or more years.
The words “is entitled to the benefit of” under s.341(1)(a) of the FW Act are crucial to the outcome of these proceedings. It was those words which were interpreted in Burnie. Burnie remains good law, binding on this Court, unless it is distinguishable or considered to be plainly wrong: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [50]-[55] per Judge Lucev.
The decision in Burnie has been followed and applied in numerous subsequent Federal Court cases referred to above: see [15]-[18] above. There is no suggestion in any of those cases that Burnie is plainly wrong (or wrong at all), and this Court does not consider it to be plainly wrong. There is currently no binding authority contrary to Burnie, or which indicates that the interpretation of the relevant words in Burnie is wrong. In Eco Recyclers, the Federal Court makes no reference to Burnie, nor does it appear to consider or analyse the distinction between present or existing entitlements, and future or prospective entitlements, but rather focuses upon the distinction between the fact of the existence of an instrument or order and its contents, a distinction which has been addressed by other authorities (see, for example, Dandenong City Council at [80] per Wilcox J), and which does not necessarily advance the analysis in relation to the distinction between present or existing entitlements, and future or prospective entitlements.
The issue as to whether Burnie is distinguishable might appear to be more difficult by reason of the various matters referred to at considerable length by the parties in these proceedings (as set out in the submissions above: see [20]-[24] above). Ultimately, however, the Court has found that Burnie is not distinguishable, for reasons which appear hereunder.
The suggestion that Burnie might be distinguishable because there is a different legislative regime under the FW Act to that in the WR Act considered in Burnie cannot be sustained when one has regard to:
a)the fact that precisely the same phrase, that is “is entitled to the benefit of” was considered in Burnie as is under consideration here;
b)the provisions under consideration in Burnie were, like the provisions under consideration here, concerned with the effect of proscribed conduct in relation to an entitlement to a benefit under an industrial agreement; and
c)the phrase “is entitled to the benefit of”, which appeared in s.5(1)(b) of the Conciliation and Arbitration Act 1904 (Cth) was held under that legislation to refer to an entitlement “as a matter of legal right”: Leontiades v FT Manfield Pty Ltd (1980) 43 FLR 193 at 196 (and see also 197) per Keeley J.
The distinction sought to be maintained by Mr Gulliver as between the terms of the WR Act and the FW Act therefore falls away. On the basis of the legislative schemes as they appear there is no good reason to distinguish what was said in Burnie in relation to s.298L(1)(h) of the WR Act and s.341(1)(a) of the FW Act under consideration in these proceedings.
The reliance sought to be placed by Mr Gulliver upon the Explanatory Memorandum to distinguish Burnie is also misplaced. The plain meaning of the words of s.340(1)(a) of the FW Act, and in particular “is entitled to the benefit of”, are clear and unambiguous and do not require any resort to extrinsic materials. However, if regard is had to the Explanatory Memorandum it merely confirms the meaning of the provision as it was explained in Burnie.
The Explanatory Memorandum’s reference to benefits that are contingent or accruing such as LSL does not assist Mr Gulliver. The words “is entitled” refer to an entitlement which is present or existing, which must include an entitlement which is presently accruing, the latter as in the case of LSL (or also annual leave as in the example given in the Explanatory Memorandum). An employee can have a dispute with respect to the accrual of LSL, or the taking of part of a period of LSL, where it has accrued. An employee requested to work overtime, or who works overtime, has an entitlement to be paid for that overtime. Likewise with pregnancy: upon a person knowing that they are pregnant, the relevant entitlements can be invoked. An employee can have a dispute with respect to entitlements to leave on the basis of pregnancy, or in relation to ongoing employment where employment is sought to be terminated or altered to the prejudice of the employee, once the fact of pregnancy is established. Those are present or existing entitlements, not future or prospective entitlements. The Explanatory Memorandum does not derogate from the ordinary meaning of the words “is entitled to the benefit of” as set out in Burnie (and the other Federal Court cases which have followed Burnie).
The right to conversion only becomes a present or existing entitlement – as opposed to a future or prospective entitlement – once an employee under the Agreement has been engaged on two or more consecutive fixed term appointments for a period of three years or more in the same faculty or area. By contrast to the overtime, LSL and pregnancy examples in the preceding paragraph where the right exists (in that it is a present or accruing right), the right to apply for conversion to continuing appointment status crystallises at a particular point: that is, after three years of two or more consecutive fixed term appointments. Prior to that time, there is no right to conversion to continuing appointment status. It follows that there is therefore also no workplace right in relation to conversion to continuing appointment status, prior to that time. In relation to Mr Gulliver that means that that Mr Gulliver was not entitled to the benefit of cl.15.5.2 of the Agreement and therefore did not have a workplace right for the purposes of s.341(1)(a) of the FW Act at any material time.
The Court does not propose to deal with the question of whether or not Mr Gulliver’s invoking of the dispute settlement procedure under cl.68 of the Agreement was a workplace right for the purposes of s.341(1)(b) (or possibly (c)) of the FW Act. Although those matters were canvassed at the hearing, albeit briefly, the Court has come to the view that those are matters which might require the giving of evidence, or at least the establishment of a proper evidentiary basis as to the extent of the dispute and what occurred in the dispute settlement process, before any ruling could properly be made as to whether or not those processes properly gave rise to a workplace right in this case.
Conclusion and orders
In all of the above circumstances the Court has concluded that Mr Gulliver was not entitled to the benefit of cl.15.5.2 of the Agreement and therefore did not have a workplace right for the purposes of s.341(1)(a) of the FW Act at any material time. There will be a declaration accordingly.
A declaration to the effect referred to in the preceding paragraph does not necessarily dispose of this matter because of other workplace rights claimed by Mr Gulliver in the Application, and which were not the subject of any significant argument at hearing, and in any event, ought to be further considered in the light of these Reasons for Judgment. It is appropriate therefore that the parties confer prior to a further directions hearing at 9.45am on 7 December 2017. There will be an order with respect to the time and date of the directions hearing.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 20 November 2017
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