Keane, M. v Heide P/L

[1992] FCA 665

Re: MICHAEL KEANE
And: HEIDE PTY. LTD. (trading as FARMHOUSE SMALLGOODS)
No. V I91 of 1991
FED No. 665
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Industrial Law - casual employee specifically engaged as such - award rate of hourly pay 20% higher than weekly employees' rate - wages payable on termination of work each day if requested - award provision that "employment ... shall terminate at the conclusion of the period of the engagement" - award provision that "termination of employment by an employer shall not be harsh ..." - employee informed by employer that not needed for certain work in next week - whether employment terminated by the employer

Industrial Relations Act 1988

Re Shop Assistants Awards 1957 AR (N.S.W.) 339.

HEARING

MELBOURNE

#DATE 11:8:1992

Counsel for the Applicant: Mr N. Green

Solicitors for the Applicant: Scott and Williams

Counsel for the Respondent: Mr M. Lapirow

Solicitors for the Respondent: Dawson Kennedy and McDonald

ORDER

THE COURT ORDERS THAT:

1. Application dismissed.

2. No order is made as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court rules.

JUDGE1

Michael Keane ("the applicant") has alleged that Heide Pty Ltd ("the respondent") breached clause 6(b)(vi) of the Federal Meat Industry Award ("the award") by dismissing him on or about 8 May 1991, which dismissal he alleged was "harsh, unjust or unreasonable". The respondent has denied that it dismissed the applicant and also denied that the dismissal (if, contrary to the respondent's denial, it had occurred) was "harsh, unjust or unreasonable".

1. The application raised other issues of fact and law, including the question whether terms of the award were implied terms of the contract and the applicant's claim for damages for breach of contract. The case was estimated to require a hearing of 6 hearing days. In those circumstances the court, after hearing submissions from the parties decided to hear first the parties' evidence and submissions as to the first issue, namely, whether the applicant was dismissed by the respondent.

2. The order made by the court was that it should first decide the question "whether the cessation, on or about 8 May 1991, of the applicant's employment with the respondent constituted the termination of the applicant's employment by the employer within the meaning of clause 6".

3. On the evidence relating to that issue the following facts are found:-
   

1. The applicant was employed by the respondent as a meat worker from July 1990 until May 1991.

2. It was conceded that he was "specifically engaged" as a casual employee under clause 11(a)(i) of the award. (transcript 60 line 8)

3. As a casual worker the applicant was entitled to be paid and was paid at a rate which was 20 per cent higher than that paid to meat workers on weekly hiring.

4. On one occasion in October or December 1990 (the evidence being unclear as to which month) the employer, paid the applicant in respect of one week's work, ("the period of one week") the rates appropriate for an employee on weekly hiring. The applicant in his evidence agreed that he had "complained about not being paid the additional 20 per cent" (transcript 19 line 33) and made clear to the employer his objection to being treated as being employed on that basis. He said to the employer's representative "that he could not survive without having the 20 per cent loading" and that unless he was paid as a casual employee he would have to look for another job" (transcript 19 line 8).

5. The respondent acceded to the applicant's request that it continue to treat him as a casual employee and thereafter paid him the additional 20 per cent.

6. On Friday 3 May 1991 the respondent told the applicant "we won't need you to work Monday or Tuesday (of next week)". I accept the affidavit evidence of Sonia Steiger (par 3) that "there was in fact no work of the kind which he at that time carried out available on the Monday or Tuesday". The applicant asked her "What about Wednesday?" and was told to ring the office on Tuesday as to whether he would be needed for work on Wednesday. He telephoned on Tuesday and was told there was no work for Wednesday.

7. I accept Sonia Steiger's affidavit evidence (par 3) that on "one or two previous occasions during his employment (she) had told him not to come in because there was no work for him". The applicant in his oral evidence agreed that that had occurred "twice, each for the duration of one or two days each time". (transcript p 22 line 36)

8. The applicant attended at the respondent's premises for work each day unless (he) had been told the previous day not to come in ... (transcript 27 line 21)

1. Clauses 6 and 11 of the award included the following provisions:-
   

6 - CONTRACT OF EMPLOYMENT

(a) Subject to subclause (d) hereof and except as hereinafter provided, employment shall be by the week. Any employee not specifically engaged as a casual or part-time employee, shall be deemed to be employed by the week. Except as may hereinafter be provided, an employee to become entitled to payment on a weekly basis, shall perform such work as the employer shall from time to time require on the days and during the hours usually worked by the class of employee affected.

Summary dismissal

....

(b)(v) Notwithstanding the provisions of sub-paragraph 6(b)(i)(1) hereof the employer shall have the right to dismiss any employee without notice for conduct that justifies instant dismissal including malingering, inefficiency, neglect of duty or misconduct and in such case the wages shall be paid up to the time of dismissal only. Unfair dismissal

(b)(vi) Termination of employment by an employer shall not be harsh, unjust or unreasonable. .... 11 - CASUAL EMPLOYMENT

This clause shall be read in conjunction with Parts 1 and 11 of this Award and insofar as the provisions of those parts of this Award are not overriden, negated or varied by the provisions of this clause the provisions of those parts of this Award shall apply. Where the provisions of this clause override, negate or vary the provisions of Parts 1 and 11 of this award then the provisions of this clause shall apply. Contract of employment

(a)(i) A casual employee is one who is specifically engaged as such and shall perform such work as the employer shall from time to time require during the period of the engagement.

(ii) Employment of a casual employee shall terminate at the conclusion of the period of the engagement. This shall not affect the right of an employer to dismiss a casual employee prior to the conclusion of the period of engagement for malingering, inefficiency, neglect of duty or misconduct, in which case wages shall be paid up to the time of dismissal only, or to deduct payment for any part of the engagement during which an employee cannot be usefully employed, because of any strike other than in the meat industry, or through any breakdown of machinery or any stoppage of work in the meat industry by any cause for which the employer cannot reasonably be held responsible, or for any period of the engagement during which an employee cannot be usefully employed because of any strike in the meat industry. Period of engagement

(b) Subject to the provisions of subclause (a) hereof, a casual employee shall be engaged by the hour provided that: ...

Payment

(c)(i) A casual employee shall be paid for each hour employed, one-thirty-eighth of the weekly wage prescribed by this Award for the classification employed, plus a loading of 20 per cent for each hour employed. Such loading shall be in lieu of payment for annual leave, sick leave, holidays, long service leave and compassionate leave. ....

(c)(v) Wages due to a casual employee shall be paid immediately on the termination of work on each day on which the employee is engaged if so requested by any such employee.

1. The applicant's counsel informed the court that all of the sub-clauses in clause 6(b) were inserted into the award at the same time; further, that at that time sub-clauses 11(a) and (b) were already in the award. He accepted that clause 6(b)(i) (ii) (iii) (iv) and (v) did not apply to the applicant as a casual employee. (transcript 64-66) However, he submitted that sub-clause 6(b)(vi), headed "unfair dismissal", did apply submitting that it "draws no distinction between those employed as weekly employees and those who are employed as casual employees". (transcript 66-67)

2. I am unable to accept that submission. In my opinion sub-clause 6(b)(vi), as a matter of construction of the provision, in its context, does not apply to a "casual employee ...who is specifically engaged as such" under sub-clause 11(a)(i). The applicant was so engaged.

3. If, contrary to that opinion, sub-clause 6(b)(vi), as a matter of construction, applied to such a casual employee then, in my opinion the provisions of clause 11 of the award would "override (or) negate ... the provisions of" sub clause 6(b)(vi). I reject the applicant's submission to the contrary.

4. I am unable to accept the applicant's submission that the Commission, in inserting sub-clause 6(b)(vi) in the award, intended to confer the very considerable benefits of that sub clause upon employees who are "specifically engaged" as casuals and are paid 20 per cent more than employees on weekly hiring.

5. The reason for award provisions that casual employees be paid at a higher rate was expressed by Anderson at p.508 of his "Fixation of wages in Australia" as follows:-
   

"Payment for casual labour is always fixed by the Court at a higher rate than that allowed to permanent employees doing the same class of work. The higher rate helps the casual worker to earn the minimum wage in his class, and also induces "employers to so marshal their industrial forces as to mitigate the evils and inequalities of casual employment. (Food Preserving Employees' case (Quick, D.P.), 1925, 21 CAR 749, at p 753)".

1. Under the award the employment "of a casual employee shall terminate at the conclusion of the period of engagement" (sub-clause 11(a)(ii)). In my opinion the retention of that provision in the award supports the view that the Commission did not intend to confer the benefits of sub-clause 6(b)(vi) upon casual employees; they are "employees who are employed as and when required" (per De Baun J in Re Shop Assistants Awards 1957 AR (NSW) 339 at 344).

2. The applicant's counsel advanced those submissions and others forcefully and well, and I have considered them carefully both during their oral presentation and by reading the transcript of them last night. However I am unable to uphold them. I reject the submission "that the employer does participate in the act of termination because under clause 11(a)(i) it determines the duration of the engagement". (transcript 68 line 29)

3. Clause 11(a)(ii) itself provides expressly that "employment of a casual employee shall terminate at the conclusion of the period of the engagement". I reject the submission of the applicant's counsel that the words "such work as the employer shall ... require during the period of the engagement", appearing in sub-clause 11(a)(i) of the award, bring about the result that the employer "partakes of the act of termination". (transcript 69 line 8)

4. It may be added that, on the evidence, I cannot uphold the submission that that evidence "supports the analysis that once the applicant entered upon his period of engagement that period was to continue until his employer told him otherwise" (transcript 69 line 10). Counsel sought to rely upon the evidence referred to in finding number 8 above, namely, that the applicant attended "for work each day unless (he) had been told the previous day not to come in ...". (transcript 27 line 21) However in my opinion that evidence is an inadequate basis for the submission. I am unable to accept the applicant's submission "that the evidence establishes that the period of the engagement is undetermined" (transcript 72 line 19).

5. For these reasons I have decided to answer the question set out earlier in these reasons by saying that the cessation of the applicant's employment with the respondent did not constitute the termination of the applicant's employment by the respondent within the meaning of clause 6 of the award.

6. In the circumstances it is not necessary to decide the conflict of evidence between the applicant and Mrs Willis, (referred to by the applicant's counsel - transcript 79).

7. Accordingly the application is dismissed.