Hazell v Sewell

Case [2021] FCAFC 76

FEDERAL COURT OF AUSTRALIA

Hazell v Sewell [2021] FCAFC 76

Appeal from: Hazell v Sewell [2020] FCCA 2446
File number(s): NSD 1104 of 2020
Judgment of: RARES, FLICK AND KERR JJ
Date of judgment: 21 May 2021
Catchwords: INDUSTRIAL LAW – statutory interpretation – construction of Live Performance Award 2010 – where employer in live performance industry employed disc jockey as a casual to work usually at private functions – whether “performance” as defined had to be open to general public for Award to apply – held: Award applied where employer of disc jockey received payment or benefit for performance.
Legislation:

Fair Work Act 2009 (Cth) ss 536, 570

Live Performance Award 2010 cll 3, 4.1, 26.2, B7.2, B9.3,

Cases cited:

Finance Sector Union of Australia v Unimoni Pty Ltd [2019] FCA 112

Hazell v Sewell [2020] FCCA 2446

King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173

Kucks v CSR Ltd (1996) 66 IR 182

Treasury Wine Estates Vintners Ltd v Pearson (2019) 268 FCR 12

Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235

WorkPac Pty Ltd v Skene [2018] FCAFC 131

Zhu v Treasurer (NSW) (2004) 218 CLR 530
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 48
Date of hearing: 13 May 2021
Counsel for the Appellant: Mr P. Doyle Gray with Ms V. Chan
Counsel for the Respondent: Ms V. Bulut
Solicitor for the Respondent: Sparke Helmore
Table of Corrections
9 November 2021 At [13], “Perram J” should be substituted for “Perry J”.

ORDERS

NSD 1104 of 2020
BETWEEN:

JULIAN HAZELL

Appellant
AND:

ANTHONY JAMES SEWELL

Respondent

ORDER MADE BY:

RARES, FLICK AND KERR JJ

DATE OF ORDER:

21 MAY 2021

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The order made by the Federal Circuit Court on 11 September 2020 be set aside and in lieu thereof it be ordered that:

(a)it be declared that the applicant was employed by the respondent as a casual performer category 2 within the meaning of cl B9.3 in Sch B to the Live Performance Award 2010;

(b)the matter be fixed for hearing to determine the amounts, if any, owing to the applicant under the Award, whether the respondent contravened the Fair Work Act 2009 (Cth) as alleged and, if so, the amount of any penalties and any other outstanding issues.

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


REASONS FOR JUDGMENT

RARES J:

  1. The appellant, Julian Hazell, was employed by the respondent, Anthony Sewell, as a ‘DJ’ or disc jockey on a casual basis during the period 2 October 2010 to 29 September 2018.  Mr Sewell ran a business called Mobile Millennium DJ’s. 

  2. At the trial before the Federal Circuit Court there had been issues as to whether the relationship between Mr Hazell and Mr Sewell was, as Mr Sewell had contended, that of an independent contractor and principal.  Mr…

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Hazell v Sewell [2021] FCAFC 76
Case
[2021] FCAFC 76
Decision Date

CaseChat Overview and Summary

The parties to the case are Julian Hazell, the appellant, and Anthony Sewell, the respondent. The dispute revolves around the classification of Mr Hazell's employment under the Live Performance Award 2010 and the quantum of any monies due to him. The case was heard in the Federal Court of Australia. The central legal issue before the court was whether Mr Hazell, a disc jockey employed by Mr Sewell, fell under the definition of "performer" as per the Live Performance Award 2010. The Federal Circuit Court had ruled against Mr Hazell, stating that he was not covered by the Award because his performances were not open to the general public. Mr Hazell appealed this decision to the Federal Court.

The court's reasoning focused on the interpretation of the term "performance" within the context of the Award. It found that the Award applies to performances for which the employer receives payment or other benefit, irrespective of whether the performance is open to the general public. This interpretation aligns with the industrial purpose and practical context of the Award, rather than a narrow or pedantic reading of the text. The court concluded that the Federal Circuit Court had overlooked the broader context and purpose of the Award when making its decision.

As a result of this reasoning, the appeal was allowed, and the matter was remitted to the Federal Circuit Court. The court ordered that Mr Hazell was employed by Mr Sewell as a casual performer category 2 under the Live Performance Award 2010 and directed that the court determine the amounts owing to Mr Hazell under the Award, whether any contraventions of the Fair Work Act 2009 (Cth) occurred, the amount of any penalties, and any other outstanding issues. The Federal Circuit Court is now tasked with resolving these specific matters.

Orders

Orders of the court

1. The appeal be allowed.

2. The order made by the Federal Circuit Court on 11 September 2020 be set aside and in lieu thereof it be ordered that:

(a) it be declared that the applicant was employed by the respondent as a casual performer category 2 within the meaning of cl B9.3 in Sch B to the Live Performance Award 2010;

(b) the matter be fixed for hearing to determine the amounts, if any, owing to the applicant under the Award, whether the respondent contravened the Fair Work Act 2009 (Cth) as alleged and, if so, the amount of any penalties and any other outstanding issues.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Hazell’s claim for costs should be rejected. There was no unreasonable act or omission by Mr Sewell or his solicitor within the meaning of s 570(2)(b) of the Fair Work Act. Once Mr Hazell’s written submissions on the appeal pointed out that his Honour had overlooked the penalties issue, Mr Sewell promptly conceded that the matter needed to be remitted. It seems obvious that, until counsel for Mr Hazell discerned the true position, no one, including the trial judge, perceived that there had been an innocent oversight, not an unreasonable act or omission.Conclusion For these reasons the appeal must be allowed and the proceeding remitted to the Federal Circuit Court to be determined in accordance with law. There should be a declaration that Mr Hazell was employed by Mr Sewell as a casual performer category 2 in the period between 2 October 2010 to 29 September 2018 under the Award. The Appellant in the present proceeding, Mr Julian Hazell, was retained by the Respondent (Mr Anthony Sewell). The Respondent operated a business known as Mobile Millennium DJ’s. That business provided disc jockey services for payment. Mr Hazell was retained to provide such services. An issue which once divided the parties was whether Mr Hazell was an independent contractor or an employee. That issue has fallen to one side. Before this Court it was accepted that Mr Hazell was a casual employee. The issue which continued to divide the parties before this Court was whether Mr Hazell was covered by the Live Performance Award 2010 (the “Award”). Mr Hazell was not paid the greater amount provided for in that Award. That issue was resolved adversely to Mr Hazell by the Federal Circuit Court: Hazell v Sewell [2020] FCCA 2446 at [46]. The Federal Circuit Court concluded that he was not covered. Mr Hazell appealed to this Court. The appeal is to be allowed and the proceeding is to be remitted to the Federal Circuit Court for the determination of (inter alia) the quantum of any monies to be paid to Mr Hazell in respect to outstanding payments, superannuation payments and penalties (if any). Clause 4.1 of the Award provides for the coverage of the Award as follows:4.1This industry award covers employees throughout Australia in the live performance industry and their employees in the classifications set out in this award to the exclusion of any other modern award.That Clause, it will be noted, applies for the coverage of “employers … in the live performance industry” and “employees in the classifications set out in this award…”. The “classification” pleaded in Mr Hazell’s Statement of Claim as filed in the Federal Circuit Court as that applicable to Mr Hazell was that in cl B.9 of Sch B of the Award, a “Live Performance Employee Level 9”, and within that clause a “Performer Category 2” (cl B.9.3 of the Award). That classification again refers to a “performer” and “performances”. The terms “performance” and “performer” and the phrase “live performance industry” are defined in cl 3 as follows:performance means a performance given by employees which is open to the general public on payment of an admission charge and/or for which the employer receives payment or other benefitperformer is an employee who takes part in a performance and includes an actor, singer, dancer, musician, understudy/swing performer, puppeteer, compere, comedian or any other type of performer...live performance industry means producing, including pre-production and post-production, staging, lighting, audio and audio/visual, presenting, performing, administration, programming, workshops, set and prop manufacture, or otherwise undertaking live theatrical, performance art, operatic, orchestral, dance, erotic, variety, revue, comedy, multi-media, choral, or musical performances, productions, presentations, workshops, rehearsals or concerts, including the provision, sale, service or preparation of food or drink and also including selling tickets by any means, for or in or in connection with any such performances, productions, presentations workshops, rehearsals or concerts, and including the operation of venues or other facilities, whether permanent or temporary, utilised for such performances, productions, presentations, workshops, rehearsals or concerts are performed or presented in the presence of an audience, or are recorded by any means(without alteration)

Ratio Decidendi

Legal Principle Established

Mr Sewell submitted that if Mr Hazell were not covered as a “performer” within the definitions and classifications in the Award, that did not entail that he might not have been be covered by some other industrial instrument or be entitled to the protections afforded by the national minimum wage order. Mr Sewell emphasised that Mr Hazell’s case at trial was that he was covered by the Award as a performer category 2 and that he had not asserted or sought relief that he was entitled to be paid on any other basis. Consideration The principles for construing awards and other industrial instruments are well settled. It is necessary to read them as a whole, as Rares, Perram and Charlesworth JJ explained in Treasury Wine Estates Vintners Ltd v Pearson (2019) 268 FCR 12 at 29 [73] namely, that it is necessary: … to read the agreement as a whole and construe it in accordance with established principle. In Energy Australia Yallourn Pty Ltd vAutomotive, Food, Metal, Engineering, Printing and Kindred Industries Union (2018) 264 FCR 342 at [56]-[58], Rares and Barker JJ said (and see also at [133] per Flick J and Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 at [65] per White J, with whom Mortimer and Bromwich JJ agreed):It is important to have regard to the industrial purpose of the Yallourn agreement and the commercial and legislative context in which it applies when construing it, including cl 28 itself as a whole: Amcor Ltd v Construction, Forestry, Mining andEnergy Union (2005) 222 CLR 241 at 249 [13] per Gleeson CJ and McHugh J, 270-271 [96] per Kirby J, 282-283 [129]-[131] per Callinan J, and see too at 253 [30] per Gummow, Hayne and Heydon JJ. Both Kirby J and Callinan J expressly approved (at [96], [129]-[130]) and Gleeson CJ and McHugh J applied (at [13]), what Madgwick J had said in Kucks v CSR Ltd (1996) 66 IR 182 at 184, namely:It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. (emphasis added)Although that decision concerned an award, Madgwick J’s observations have equal application to the construction of enterprise agreements made under the FairWork Act. An enterprise agreement must be construed in its industrial and legislative context as an agreement made between parties engaged in an employment relationship in which employee organisations, such as the five unions, can, and often will, have a workplace right under ss 341(1) and or 183(1) of the Fair WorkAct to play a part, including as a party to it. Those persons may not have been assisted by lawyers in the precise framing and expression of its terms.