Kroeger v Mornington Peninsula Shire Council - [2019] FCCA 2313

FEDERAL CIRCUIT COURT OF AUSTRALIA

KROEGER v MORNINGTON PENINSULA SHIRE COUNCIL

[2019] FCCA 2313

Catchwords:
INDUSTRIAL LAW – Fair Work – Applicant employed in two jobs – Applicant’s claim that the Respondent failed to calculate and pay overtime on the basis of hours worked in both jobs cumulatively – consideration of Lacson – matter indistinguishable from Lacson.

Legislation:

Fair Work Act 2009 (Cth) ss.47, 50, 52, 545.

Cases cited:

Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53

Choppair Helicopters Pty Ltd v Borbridge (No 2) [2018] FCA 700

Fair Work Ombudsman v OzKorea Pty Ltd [2018] FCA 2350

Lacson v Australian Postal Corporation [2018] FCCA 511

Lacson v Australian Postal Corporation [2019] FCA 51

Applicant:

JONI KROEGER

Respondent:

MORNINGTON PENINSULA SHIRE COUNCIL

File Number:

MLG 2029 of 2018

Judgment of:

Judge Blake

Hearing date:

25 and 26 July 2019

Date of Last Submission:

26 July 2019

Delivered at:

Melbourne

Delivered on:

22 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Jardine

Solicitors for the Applicant:

Bayside Solicitors

Counsel for the Respondent:

Mr Denton

Solicitors for the Respondent:

Gadens Lawyers

ORDERS

The Application filed on 12 July 2018 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2029 of 2018

JONI KROEGER

Applicant

And

MORNINGTON PENINSULA SHIRE COUNCIL

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application commenced by the Applicant on 12 July 2018 by way of a Statement of Claim. An Amended Statement of Claim (‘Claim’) was subsequently filed with consent prior to trial on 25 July 2019.
The principal issue in dispute between the parties is as follows. During her employment with the Respondent, the Applicant was employed in two jobs. The first job held by the Applicant was that of a Fitness Instructor. The second job held by the Applicant was that of a Customer Service Officer. The Applicant claims that the Respondent failed to pay and calculate her overtime entitlements correctly under the relevant enterprise agreements. She alleges that her hours of work in each of the jobs referred to above should be considered cumulatively for the purposes of calculation of overtime.
The Respondent rejects this contention. It says that the relevant enterprise agreements applied separately and distinctly to the Applicant’s two jobs and it is impermissible to calculate the Applicant’s hours of work cumulatively in order to ascertain her entitlement to overtime pay. In this respect, the Respondent submits that the present matter is indistinguishable from the decision of Judge McNab in this Court in Lacson v Australian Postal Corporation [2018] FCCA 511, which was upheld on appeal by Justice Mortimer of the Federal Court of Australia in Lacson v Australian Postal Corporation [2019] FCA 51.
I am satisfied that the relevant enterprise agreements applied separately and distinctly to the Applicant’s two jobs and that her hours worked in each job are not to be counted cumulatively for the purpose of calculating her entitlement to overtime pay. My reasons for this finding are set out below.

Facts

Much of the factual background in this matter is not in dispute. I have set out the facts are that are not in dispute below:
a)The Applicant commenced employment with the Respondent in about 1994 in the position of a Fitness Instructor. She was engaged on what has variously been described as a casual or sessional basis. No letter of offer or contract of employment was in evidence, however the Applicant produced a copy of a position description which she says she signed and returned at the time.
b)The key responsibilities of the Applicant in the role of Fitness Instructor was to conduct fitness classes at the Respondent’s fitness centres, initially located at Somerville. She was also required to undertake work involving advising patrons on health and fitness issues, to be properly prepared to conduct the classes, setting up for classes, creating individual fitness programs and meeting and greeting class attendees.
c)In her position as a Fitness Instructor, the Applicant was required to hold a relevant qualification with an Australian fitness body, hold a first aid qualification and a CPR certificate. She also held a working with children check.
d)Over the course of her employment, the Applicant did in fact perform Fitness Instructor work at three leisure centres. These centres included Somerville, Pelican Park and Civic Reserve. She also ultimately ended up performing some work at the Somerville Health Studio (‘Studio’) when the Somerville Leisure Centre burned down in 2016.
e)Approximately 10 years after first commencing employment as a Fitness Instructor, in March 2004, the Applicant commenced work for the Respondent as a permanent part-time Customer Service Officer (the ‘CSO Position’). She commenced employment pursuant to the terms of a letter of offer dated 30 March 2004. Relevantly, the letter contained the following paragraph (annexure JK-2 to the affidavit of the Applicant sworn on 7 March 2019):
‘This letter is to confirm the commencement of your new employment position as a Permanent Part Time Administration and Reception Officer. Your previous employment status as casual Group Fitness Instructor will now be an additional position’.
f)The Applicant’s duties in the CSO Position included the provision of customer service to customers, ensuring patrons were greeted and assisted upon entry, assisting with phone queries, opening and closing the centre, providing administrative support to user groups accepting payments for fitness classes and undertaking a range of other administrative activities.
g)The Applicant performed both jobs for the Respondent until her employment ceased on 29 October 2017.
h)In around May 2016, the Respondent’s Recreation Centre at Somerville burned down following an arson attack. Consequent upon this, the Applicant conducted one class at the Respondent’s Civic Reserve Recreation Centre. Importantly, however, the Respondent subsequently established the Studio on the foreshore in Somerville to cater for customers who were affected by the arson attack at the Somerville Recreation Centre. The Studio was, in effect, a shop front from which the Respondent provided fitness classes. The Applicant commenced working at the Studio on or shortly after it was opened.
i)There were occasions in a day when the Applicant ceased performing one job, immediately commenced in the other job, and then at the conclusion of the second job, immediately resumed the first job. For example, there were occasions when the Applicant started work in the CSO Position, then took a fitness class as a Fitness Instructor, and then returned to perform the CSO role. There were also occasions when the Applicant attended work at one location and only performed one job before finishing her shift. There was some dispute between the parties as to the extent to which the Applicant had days when she performed one job and then immediately moved to the other job. This is a matter to which I will return.
j)The Applicant was required by the Respondent to enter or record the hours when she finished in one job and then commenced in another one. The Applicant’s evidence is that she did not always do this.
k)The Applicant’s employment was at all times governed by the following enterprise agreements:
i)Mornington Peninsula Shire Council Enterprise Agreement No 6 2008 (the ‘2008 Agreement’);
ii)Mornington Peninsula Shire Council Enterprise Agreement No 7 2011 (the ‘2011 Agreement’);
iii)Mornington Peninsula Shire Council Enterprise Agreement No 8 2014 (the ‘2014 Agreement’);
(collectively, the ‘Agreements’).
l)The Fitness Instructor role and the CSO Position were each classified as ‘Band 3’, ‘Sport and Leisure Team’ under the Agreements. Within the classification descriptors under Band 3, a number of individual jobs or positions are identified. Relevantly, under the Band 3 classification for ‘Sport and Leisure Team’, there is a job or position entitled ‘Administration and Reception’ and a separate job or position of ‘Health and Fitness Instructors’.
m)Each of the Agreements contained provisions relating to payment of overtime.

The Applicant’s claim

The Applicant commenced the proceedings by way of Statement of Claim which, as noted above, was subsequently amended. The Claim effectively alleges a failure by the Respondent to pay overtime payments due to the Applicant under the Agreements during the course of her employment and, consequently, a breach by the Respondent of section 50 of the Fair Work Act 2009 (Cth) (‘Act’). In her affidavit material, the Applicant claimed that the amount conservatively owed to her since 13 October 2011 was $119,074.36.
During the course of the proceeding, a number of matters became apparent. First, the Applicant conceded that when she initially commenced in the CSO Position, the jobs were entirely separate. Second, the Applicant clarified that her claim for overtime based on cumulative hours worked in both jobs only arose from the point in time at which both jobs became ‘merged’ or ‘intermingled’. The Applicant clarified that the point at which both jobs became ‘intermingled’ was the time that she commenced working in the Studio in around May 2016. Third, the Applicant claimed that she was nevertheless owed outstanding overtime in respect of each separate position, before the merger of the jobs in 2016. This particular amount was not quantified. Fourth, the Applicant contended that if the Court was satisfied that she was entitled to any overtime during the entire period of her employment, the Court could make an order to that effect notwithstanding the operation of section 545(5) of the Act. That subsection relevantly provides that:
‘A court must not make an order under this section in relation to an underpayment that relates to a period that is more than six years before the proceedings concerned commenced’.
The Respondent took issue with a number of stated deficiencies in the Claim as pleaded, as well as the Applicant seeking to supplement its claims without having properly pleaded them. The submission was put that the Applicant had elected to commence proceedings by way of pleadings, and was therefore to be held to the standard expected of pleadings in the Federal Court of Australia: see Fair Work Ombudsman v OzKorea Pty Ltd [2018] FCCA 2350 at [108]. It was submitted, that the Applicant’s case ought to be confined to the Claim as pleaded. It was submitted that the Applicant had not even pleaded the material fact of the jobs being ‘merged’ in order to found the Claim. For these and other reasons, the Respondent submitted that the Applicant’s failure to put her case with the kind of precision required should alone result in the Claim being dismissed.
It is apparent that the Applicant has not pleaded the case with sufficient precision. At its most fundamental, the Respondent came to Court to meet a case that the outstanding overtime entitlements, based on cumulative hours worked by the Applicant in both jobs, extended back to 2011. It was only on the second day of the trial that the Applicant clarified that her claim for overtime, based on the cumulative hours worked in both jobs, arose from about May 2016 when the jobs became ‘intermingled’. Similarly, the failure to plead any particulars concerning the claim arising only when the jobs became ‘merged’ or ‘intermingled’ meant that the Court was deprived of the opportunity to hear detailed evidence about what was a critical aspect of the Applicant’s case. In a pecuniary penalty proceeding, it was incumbent on the Applicant to do more than what she ultimately set out in her Claim.
The issue with the pleaded claim, and the manner in which the case then unfolded, some of which has already been recounted, raised two issues. First, upon closing her case, Counsel for the Applicant foreshadowed a late amendment to the Claim, to add allegations that the Respondent had underpaid the Applicant. This application was ultimately not pressed by the Applicant.
Second, following the concession made by the Applicant that her claim for overtime based on cumulative hours only arose in May 2016, her Counsel indicated that she sought compensation for unpaid overtime entitlements based on her hours worked in each job separately up to 2016.
In my view, the position articulated by the Applicant that she now claims overtime based on hours worked separately in each job cannot be entertained or succeed for the following reasons. First, the matter was not prosecuted by the Applicant on that alternative basis. The pleadings and written submissions of the parties were all directed to the issue of whether the Applicant was entitled to overtime payments based on the cumulative hours she worked in both jobs. The witness evidence, and the examination of the witnesses was conducted on that basis. Second, no formal application was made to expand the claim to deal with that issue. Third, the Applicant ultimately did not press any application to amend the claim to include additional alleged underpayments. That issue is therefore not before the Court.
Further, to the extent that it may still be relevant given my comments above, the Applicant’s claim for any payment for overtime beyond the six years before the proceedings concerned commenced cannot succeed. Section 545(5) of the Act, as set out above, is in mandatory terms and constitutes an absolute prohibition on the Court making any order that relates to an underpayment that has arisen more than six years before the proceedings are commenced. There is no discretion on the Court to alter this.
When all of the above is considered, ultimately, the matters before the Court came to these:
a)whether section 52(2) of the Act operated to prevent the Applicant from seeking to claim entitlements to overtime based on the cumulative hours she worked in both jobs from around May 2016;
b)if the Court was satisfied that the Applicant was entitled overtime payments based on the cumulative hours she worked, how the overtime payments were to be calculated under the provisions of the Agreements;
c)the quantum of any outstanding overtime payments owing to the Applicant.
At the outset, the parties agreed that questions relating to quantum or compensation payable to the Applicant ought to be dealt with separately, and only if the Court made findings in respect of the issues set out at paragraph 14(a) that were favourable to the Applicant. It was also accepted that if the Court made a finding in favour of the Respondent in respect of the issues set out at paragraph 14(a) above, that would dispose of the matter.

The Legislative Provisions

As previously noted, each of the parties accepted that the principal issue in this case was whether the Applicant’s two jobs were to be treated as separate and distinct for the purposes of, among other things, calculating the Applicant’s entitlements to overtime under the Agreements. Each party accepted that, in order to arrive at a conclusion in relation to that question, it was necessary to consider the application of section 52(2) of the Act, and in particular, whether the totality of the Applicant’s work for the Respondent ought to be regarded as ‘particular employment’ for the purposes of section 52(2) of the Act.
Section 52 of the Act provides as follows:
When an enterprise agreement applies to an employer, employee or employee organisation
When an enterprise agreement applies to an employee, employer or organisation
(1) An enterprise agreement applies to an employee, employer or employee organisation if:
(a) the agreement is in operation; and
(b) the agreement covers the employee, employer or organisation; and
(c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.
Enterprise agreements apply to employees in relation to particular employment
(2) A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.
The meaning and scope of section 52(2) of the Act has been considered in circumstances similar to the present case in the decisions of Lacson, which I have referred to earlier.
In Lacson, the applicant employee held the job of a Postal Delivery Officer that involved sorting mail and other duties from 6am to 9am at the Collingwood Post Office, and another job of Postal Sorting Officer that involved unloading and sorting bulk mail at the Melbourne Parcel Facility in Sunshine from 3:30pm to 10pm. The applicant employee held these two part-time jobs, obtained at different times and paid at different rates, with the same employer since at least 2004. Over the course of his employment, the respondent employer was relevantly covered by an enterprise agreement made in 2010, and another enterprise agreement made in 2013.
The applicant employee brought an action against his employer for, amongst other things, failure to pay his full entitlements to overtime under the enterprise agreements. The key issue in the proceeding was whether the respondent employer was correct to treat the two jobs as separate and distinct for the purpose of calculating overtime, or whether the hours worked in the two jobs were to be calculated cumulatively.
In its defence, the respondent employer relied upon section 52(2) of the Act. The respondent employer submitted that by reason of the operation of section 52(2) of the Act, the enterprise agreements applied to the applicant employee in relation to his particular employment as a delivery officer at Collingwood, and separately in relation to his particular employment as a sorting officer at Sunshine. The position advanced was that each of those jobs were to be treated separately and distinctly for the purpose of calculating overtime. It was submitted, among other things, that as the employee was employed pursuant to two separate contracts of employment, there could not be aggregation of hours across both jobs for the purposes of calculating overtime, having regard to the language of section 52(2) of the Act.
At first instance, Judge McNab dismissed the applicant employee’s claim. Judge McNab found at [60] that:
‘… the wording of section 52(2) of the Act contemplates that an enterprise agreement may apply to particular employment and does not preclude an enterprise agreement applying to one particular employment and to a different employment undertaken by the same employee with the same employer’.
Judge McNab reached that conclusion after having examined the Explanatory Memorandum to the Act, which provided at paragraph [205] (paragraph [60] of the judgment) that:
‘… a national system employee has more than one job, each job is treated separately in determining the effect of an award or agreement on an employee’s entitlements in relation to each job’.
McNab J also had regard to the comments by the High Court of Australia in Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53 in construing section 52 of the Act.
The decision of Judge McNab was the subject of an appeal before Justice Mortimer in the Federal Court of Australia. Mortimer J dismissed the appeal and concluded that it was ‘tolerably clear’[1] that the phrase ‘particular employment’[2] was used to enable identification, with sufficient precision, of what the job or position of an employee is at any given time. Mortimer J commented at paragraph [69] that, in her opinion:
‘… the work done by s 52(2) therefore is to confine the circumstances in which an enterprise agreement will “apply” to an employee to those circumstances where the employee is occupying a particular position or a particular job, and the contents of that enterprise agreement are intended to apply to the employee while she or he occupies that position or job, creating entitlements and obligations in the employee and the employer in accordance with the enterprise agreement’.
[1] Lacson v Australian Postal Corporation [2019] FCA 51 at [68]
[2] Lacson v Australian Postal Corporation [2019] FCA 51 at [68]

It is also relevant to note Justice Mortimer’s comments at paragraph [132] of the decision where she stated:
‘That the appellant found himself performing two different jobs, at two different locations, with two different kinds of works, for one employer, was a function of choices he had made. It does not appear he made those choices believing, or having it represented to him, that they would be treated as one job and he should secure the considerable additional sums of money he is now seeking. Rather, he appears to have made those choices on the basis-correctly as this Court and the Federal Circuit Court have found-that he had two separate employment arrangements with Australia Post, each one regulated separately by the enterprise agreements’.

Consideration

The central contention advanced by the Applicant is that her ‘particular employment as a group fitness instructor and as a customer service officer became merged into particular employment’[3]. This contention is not to be found in the Claim, but is found in the Applicant’s Outline of Submissions and was emphasised by her Counsel during the trial. As noted above, the allegation that the roles became ‘merged’ into one particular employment was said during the trial to have occurred in around May 2016. Prior to that, it is accepted that the roles were separate and distinct.
[3] Applicant’s submissions filed on 29 April 2019
The Applicant’s evidence in relation to how the roles became ‘merged’ is set out in her affidavit. Illustrative of the way the Applicant put her case in relation to the merger of the roles, is the following extract taken directly from her affidavit sworn on 7 March 2019 at paragraph [20]:
‘When I worked at Somerville after it burnt down, on a Wednesday I would do customer service from 9 AM to 9:20 AM during which time I would open up the centre and accept payments for the classes. Then I would teach the fitness class 9:20 to 10:20 AM. I would do customer service 10:20 until 10:40 AM. Teach my second class 10:40 AM to 11:40 AM and after the fitness classes I would change my shirt quickly before resuming the customer service duties 11:40 AM until sometimes 12:30 PM processing memberships and end of day banking tasks.’
In argument, Counsel for the Applicant also emphasised the following matters which she said distinguished the present matter from the decision in Lacson. First, the employee in Lacson performed his two jobs at two different locations and enjoyed a break between each shift. Here, it was submitted, there was no break between performing one role and then the other, and the work was performed at the same location. Second, Counsel for the Applicant submitted that the Applicant had at times been paid the pay rate applicable to the Fitness Instructor job when undertaking the CSO Position, and had been paid the applicable rate of pay for the CSO Position when undertaking Fitness Instructor work. The submission was to the effect that this, along with the other matters referred to above, was evidence of the jobs being ‘intermingled’.
The submissions of the Applicant above focus attention on the words ‘particular employment’ as set out in section 52(2) of the Act. As noted above, Justice Mortimer commented at paragraph [68] of her judgment in Lacson that:
‘While the use of the word “employment” rather than “work” or “position” may suggest a focus on the contract of employment, in my opinion the purpose of the adjectival phrase “particular employment” is to enable identification, with sufficient precision, of what the job or position of an employee is at any given time: that is what is a position description or classification given to the work they are performing’.
Further, at paragraph [69], Mortimer J commented that:
‘The work done by s 52(2) therefore is to confine the circumstances in which an enterprise agreement will “apply” to an employee to those circumstances where the employee is occupying a particular position or a particular job’.
Justice Mortimer also referred to the decision of Justice Bromberg in Choppair Helicopters Pty Ltd v Borbridge (No 2) [2018] FCA 700 where Bromberg J, in considering section 47(3) of the Act stated at paragraph [35] that ‘The “particular employment” referred to in s 47(3) of the FW Act is simply a reference to the job held by the employee’.
Counsel for the Respondent submitted that, in order to ascertain the job of the Applicant, it is necessary to have regard to the purpose of the role, the duties performed in the job, the contract of employment and the applicable rates of pay. I accept that those matters are relevant to characterising the job held by the Applicant to those matters. I would also add to that list any relevant description of the job in the applicable enterprise agreement.
The evidence in this matter discloses, and I accept, that the Applicant initially commenced employment under a contract with the Respondent in the role of a Fitness Instructor. No written contract was in evidence, but it is clear that in the period 1994 to 2004, the Applicant performed this role alone.
It is equally clear from the evidence, and is accepted by both parties, that when the Applicant commenced in the CSO Position, she did so pursuant to a letter of offer. That letter expressly provided that the CSO position was a ‘new employment position’. The terms of the letter further made clear that the Applicant’s previous employment status would be an ‘additional position’. It is therefore clear that terms offered to the Applicant, and which she accepted, delineated between the two separate positions and jobs she was performing for the Respondent. I was not taken to any other evidence, whether in May 2016 or otherwise, which suggested that, the CSO position was to be regarded as anything other than an ‘additional position’ treated separately from the Fitness Instructor position. I therefore find that the Applicant agreed to perform two separate and distinct roles.
There is then the matter of the Respondent’s enterprise agreements. Given the way the matter advanced at trial and the Applicant’s acknowledgement that both jobs only became ‘merged’ in 2016, the 2014 Agreement is the relevant agreement to consider. Appendix 8 of the 2014 Agreement contains provisions applying to employees of the Respondent in its Recreation and Leisure team. The Appendix set out a range of terms and conditions relevant to employees to whom it covered. Of significance is the classification provision contained in clause 2 of Appendix 8. Clause 2.2 identifies different categories of employee. It was common ground that the Applicant fell within the category of ‘Sport and Leisure Team Member’ and that she was classified as a ‘Band 3’. Of significance is that within these descriptors under the heading ‘Positions’ are various jobs or roles falling within the Band 3 classification. A review of the jobs under the heading ‘Positions’ discloses that there is a job or position entitled ‘Administration & Reception’ and a job of ‘Health and Fitness Instructors’. Each job held by the Applicant is therefore listed separately under the terms of the 2014 Agreement.
The next matter concerns the allegations that, from 2016 the roles became ‘merged’. The Applicant’s evidence about this is set out above. Both parties accepted that there were days on which the Applicant performed each job in the manner described by the Applicant. The difference between the parties was the extent to which this occurred.
The fact that the two roles were performed at times back to back, without break, on the same day is an aspect of this matter that is quite different from the facts that arose in Lacson. Given the Applicant’s allegation that it was this pattern of work that led to the jobs becoming ‘merged’, it is necessary to give some close attention to it.
In order to answer this aspect of the Applicant’s evidence, the Respondent relied upon the evidence of Justin Giuliano. Mr Giuliano is a partner in the Risk Advisory team at Deloitte Touche Tohamatsu. Mr Giuliano gave evidence that he and his team analysed the work patterns of the Applicant. The data used to analyse the work patterns was data obtained from the Respondent’s payroll system, ‘Time Target’. The data covered the period from 6 September 2014 to 13 October 2017 (Time Target only having commenced to operate in 2014), or 762 work days (‘the Period’). It was accepted that the data on Time Target was entered by the Applicant’s supervisors or managers.
Mr Giuliano’s evidence was, to the effect, that the days on which the Applicant performed both jobs back to back were limited. His specific evidence in respect of 762 days worked by the Applicant was as follows:
a)the Applicant worked in the CSO Position only on 269 days or 35% of the time;
b)the Applicant worked in the Fitness Instructor role only on 232 days or 30% of the Period;
c)the Applicant worked in both the CSO Position and the Fitness Instructor role on the same day on 261 days or 34% of the Period.
Part of the contention advanced by the Applicant was that, unlike in Lacson where the employee was performing each job at a separate location, in this matter, the Applicant was performing the roles in the one location. This pattern of work was said by the Applicant to make this matter distinguishable from Lacson.
Mr Giuliano also gave evidence in relation to the contention above. His evidence was that of the 261 days the Applicant worked in both the CSO Position and the Fitness Instructor roles on the same day, 114 days (or 44% of the 261 days) were at one location. Further, during those 114 days, the Applicant worked to the following patterns:
a)on 39 of those days (34% of the 114 days), the Applicant moved between roles within five minutes of each other;
b)on 45 of these days (39% of the 114 days), the Applicant moved between roles within 15 minutes of each other (this includes the 39 days referred to above); and
c)on 52 of these days (46% of the 114 days), the Applicant moved between roles within 30 minutes of each other (this includes the 45 days referred to above).
Finally, Mr Giuliano gave the following evidence. First, of the 261 days the Applicant worked in both jobs on the same day, 147 of those days, (or 57% of the time), the work was performed at two locations. Second, for the 147 days where the Applicant worked at two locations, on 117 of those days, the Applicant worked in only one role at one location and then only one role at the other location, and on 30 days, the Applicant worked one role at one location and then both the roles at separate times at another location.
The Applicant submitted that I ought not accept Mr Giuliano’s evidence. The submission was made on the basis that the data entered into the Time Target system on which Mr Giuliano’s analysis is based was inaccurate. The inaccuracy was said to arise on two bases. First, the Applicant gave evidence that although she was required to sign in and out each time she changed her role, she did this inconsistently. Secondly, it was said that I should prefer the Applicant’s own evidence about when she worked.
The Applicant’s evidence on which it was submitted that I should rely is set out at paragraphs [19] to [22] of her affidavit sworn on 7 March 2019. Particular emphasis was placed on paragraph [22] of the affidavit in which the Applicant deposes to the rates of pay that she received for particular periods of work on particular days.
I have reviewed paragraph 22 of the Applicant’s affidavit closely. From some of the entries there, it may be inferred that the Applicant worked on a particular date, in a particular role, and was paid incorrectly. For example, there is an entry as follows: ‘9/08/17 0.5 7:35 – 8:05pm group fitness rate (for customer service)’. For this entry, it may be possible to draw an inference favourable to the Applicant. The issue, however, is that not all of the entries are universally in this form. For example, a good many of the entries take the form of the following example: ‘26/06/17 0.5 7:35 – 8:05pm customer service rate’. With such entries, it is not possible to draw any inference as to the Applicant being paid incorrectly, or the data in Time Target being incorrect.
A further difficulty with the Applicant’s submissions is that paragraph 22 of the affidavit is specifically directed to the subject matter of how each manager paid the Applicant. It is equally clear that the paragraph is not directed at the data in Time Target being inaccurate.
There is then evidence that emerged during the examination of the Applicant in the witness box. She attached to her affidavit some 9 to 10 paragraphs of her roster. In the witness box she identified some areas where she deposed to Time Target being in error.
The Applicant’s apparent contentions about the areas in which the Time Target data were inaccurate also need to be considered against other evidence given by the Applicant. It was apparent from her evidence in the witness box that there were areas in this matter and aspects of her case where she relied on the data in the Time Target system.
Set against the above is the following. At paragraph 8 of his affidavit, Mr Giuliano deposes to the fact that his analysis assumes the data in Time Target is accurate. In his affidavit, he also gives evidence that Deloitte examined the Payslip data and Timesheet data for irregular or incomplete information and could not identify any reason to consider that the Time Target data was inaccurate. In the witness box, Mr Giuliano also gave evidence that he checked a sample of the timesheet data and payslips of Ms Kroeger and could not identify any anomalies.
I am satisfied Mr Giuliano checked to satisfy himself to the best he could that there were not serious anomalies in the Time Target data. Mr Giuliano’s analysis is based on the records kept by the employer on a consistent basis. They were records that were used to pay, not just the Applicant, but a range of other employees. When his evidence is weighed against the Applicant’s evidence, I find that the Applicant has not, in my view, been able to demonstrate that the data contained in the Time Target system is inaccurate. Nor has the Applicant been able to demonstrate that Mr Giuliano’s analysis of that data as contained in his affidavit is incorrect. I therefore accept Mr Giuliano’s evidence as to the patterns of work performed by the Applicant.
There is one further matter to be considered in relation to Mr Giuliano’s evidence. His analysis is based on timesheet data from 2014. This analysis was undertaken at a time when the Claim was understood to cover the entire period of the Applicant’s employment. At trial, as noted earlier, the Applicant ultimately confined the Claim to the period when she said the jobs ‘merged’ in 2016. Mr Giuliano’s evidence therefore covers a longer period than the period of the Claim. No criticism can be levelled at Mr Giuliano or the Respondent for this given the unclear way in which the Claim was articulated. I am prepared to draw an inference based on the evidence however, that the patterns and dates described by Mr Giuliano above, over the period he measured, are representative of the work patterns the Applicant actually worked from May 2016.
It is to be remembered that the Applicant’s case is that the jobs she held became ‘merged’ such as to constitute ‘particular employment’ for the purposes of section 52(2). When all of the evidence above is looked at, the following is apparent. Here, the evidence that the Applicant performed both roles at the same time is non-existent. The highest the evidence gets is that she greeted customers while taking a fitness class. That might be accepted as being true, but is not evidence of the jobs becoming ‘merged’. This is because both jobs contemplated the Applicant greeting customers
It is apparent from the evidence, and I find, that the Applicant did have days where she performed one job, quickly followed by the other job. While that much might be accepted as true, two things become apparent. First, she was performing each role separately. They were being performed back to back. Second, the evidence of Mr Giuliano, which I have accepted, is that when this occurred, it occurred on a minority of days. On the majority of work days examined by Mr Giuliano, the Applicant did not work each job back to back.
It is also the case, as noted above, that while the evidence might be that the Applicant moved, on occasion, from one job to the other, it is clear that she was performing work within the scope of one job or the other. The Applicant was asked about the primary purpose of each job. She accepted the propositions put by Counsel for the Respondent that the principal purpose of the CSO Position was to provide customer service to patrons and that the principal purpose of the Fitness Instructor role was to conduct fitness classes.
Finally, there is the issue of the rate of pay paid to the Applicant when performing each of her jobs. Counsel for the Applicant contended, among other things, that the Applicant was paid incorrectly. The principal assertions made were that there were times when the Applicant was paid at the CSO Position rate when undertaking the Fitness Instructor role, or was paid at the Fitness Instructor rate when undertaking the CSO Position. It was also said that various managers paid only a proportion of the correct CSO Position rate, when she was undertaking the CSO Position.
There is evidence to suggest that some managers within the Respondent may have incorrectly paid the Applicant. For example, evidence by the Applicant that a Ms Lawrence paid her ‘0.5 the group fitness rate to do the customer service work’[4] were not challenged. Likewise, evidence that the Applicant was paid at the customer service rate for certain classes in the period June to September 2017 by a Ms Boyce or a Miss Marr were also not challenged.
[4] Paragraph 20 of the Applicant’s affidavit sworn on 7 March 2019
I do not, however, accept that these instances arose with such frequency to make a finding that the jobs became ‘merged’. I have alluded previously to the difficulties with paragraph 22 of the Applicant’s affidavit sworn on 7 March 2019. To those difficulties may be added that the Applicant’s evidence is limited only to the specific days identified by her in the affidavit, and fall short of a conclusion that the Applicant was incorrectly paid on all or a majority of the occasions that she worked. As such, I do not regard the evidence relied on by the Applicant as being able to support a finding that incorrect pay rates paid to the Applicant meant that the Applicant’s jobs became ‘merged’.
When all of the evidence above is considered, I find that the Applicant was performing her two jobs separately. I am not satisfied that the jobs became ‘merged’ in May 2016, or at any time thereafter. Each job was the subject of a separate contract. Importantly, each job was provided for and separately identified in the relevant Agreements. Each job had a separate principal purpose, acknowledged by the Applicant. Each job had different rates of pay and while there may have been errors as to pay made by the Respondents, they were not of a sufficient nature or degree to enable a finding to be made that it constitutes evidence of the jobs being ‘merged’. Finally, while the jobs were performed back to back on occasion, those occasions did not occur anywhere near like the majority of cases and in any event, given the distinct nature of the two roles, could not in my view be relied on to draw the factual finding necessary for the Applicant to succeed in this matter that the jobs became ‘merged’.
For all of the above reasons, I dismiss the Applicant’s Claim. In light of the findings made above, it is not necessary to me to consider the remaining aspects of the Claim that were advanced by the Applicant.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 22 August 2019