Lacson v Australian Postal Corporation
[2018] FCCA 511
•8 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LACSON v AUSTRALIAN POSTAL CORPORATION | [2018] FCCA 511 |
| Catchwords: INDUSTRIAL LAW – Multi-hiring – whether respondent paid applicant full entitlements to overtime, rest relief and meal allowance – whether applicant’s two roles at respondent applied cumulatively for purposes of calculating entitlements under applicable enterprise agreements – operation of section 52(2) of the Fair Work Act – hours worked by applicant not calculated cumulatively – no breach of enterprise agreement. |
| Legislation: Fair Work Act 2009, ss.50, 51, 52, 53 |
| Cases cited: ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53 Polan v Goulburn Valley Health [2016] FCA 440 Re Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award (1997) IR 250 (per Ross VP, Drake D.P. and Wilks C.) Transport Workers Union of AustraliaPty Ltd v Linfox Australia (2014) 318 ALR 54 |
| Applicant: | ROBERT LACSON |
| Respondent: | AUSTRALIAN POSTAL CORPORATION |
| File Number: | MLG 2455 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 18 September 2017 |
| Date of Last Submission: | 1 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr McKenna |
| Solicitors for the Applicant: | Ryan Carlisle Thomas Lawyers |
| Counsel for the Respondent: | Mr Tracey |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The application filed 10 November 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2455 of 2016
| ROBERT LACSON |
Applicant
And
| AUSTRALIAN POSTAL CORPORATION |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns the questions of:
a)Whether the respondent failed to pay the applicant his full entitlements to overtime entitlement under the Australia Post Fair Work Agreement 2010 (‘2010 Agreement’) and the Australia Post Fair Work Agreement 2013 (‘2013 Agreement’);
b)Whether the respondent failed to pay the applicant his full entitlements to rest relief entitlement under the 2010 Agreement and the 2013 Agreement; and
c)Whether the respondent failed to pay the applicant his full entitlements to meal allowance entitlement under the 2010 Agreement and the 2013 Agreement.
By an amended statement of claim filed 10 November 2016, the applicant alleges that:
a)On or about 26 February 2001, Australia Post employed the applicant on a casual basis at the Collingwood Post Shop on a fixed term contract.
b)On or about 2 April 2001, Australia Post employed the applicant in a role as a Postal Sorting Officer at Port Melbourne on a permanent, ongoing basis.
c)On or about 18 February 2002, Australia Post employed the applicant in an additional role as a Postal Delivery Officer at Collingwood on a permanent, ongoing basis (‘PDO role’).
d)In or about late 2004, the applicant’s role as a Postal Sorting Officer at Port Melbourne:
i)was transferred to Sunshine;
ii)became known as a Postal Services Officer role (‘PSO role’); and
iii)continued to be performed by the applicant.
e)At all material times between 28 October 2010 and 15 October 2014, the applicant was employed as a PSO and PDO pursuant to the 2010 Agreement and 2013 Agreement.
f)Australia Post was bound in relation to the applicant’s employment to accord him:
i)A minimum hourly rate of pay in the PSO Role and PDO Role as set out in the 2010 Agreement and 2013 Agreement.
ii)A shift penalty of 15% of the applicable minimum hourly rate for ordinary duty on a shift, any part of which falls between the hours of 6.00pm and 6.30am pursuant to cl 19.1.1 under the 2010 Agreement and 2013 Agreement;
iii)An overtime penalty rate:
(1)of 150% of the applicable minimum hourly rate for all work performed in the first three hours beyond 7 hours and 21 minutes per day on Monday to Friday pursuant to cl 17.1.3 of the 2010 Agreement and the 2013 Agreement;
(2)of 200% of the applicable minimum hourly rate for all work performed beyond 10 hours and 21 minutes per day on Monday to Friday pursuant to cl 17.1.3 of the 2010 Agreement and the 2013 Agreement;
(3)Double time for all work required by Australia Post to be performed without having 10 consecutive hours off pursuant to cl 17.4 of the 2010 Agreement and the 2013 Agreement; and
(4)An overtime meal allowance of $14.50 on occasions when the applicant was required to work at least one hour beyond 7 hours and 21 minutes per day, continuous with ordinary duty pursuant to cl 14.10 of the 2010 Agreement and the 2013 Agreement.
The applicant alleges that between 28 October 2010 and 15 October 2014 the applicant performed work for Australia Post in the PDO role and PSO role and that during this time the respondent failed to pay the applicant his full entitlements to overtime, rest relief and meal allowance.
The applicant claims that as a result of the breaches by the respondent of the 2010 and 2013 Agreements he has suffered loss and damage in the sum of:
a)$19,556.12 with respect to his overtime entitlement under the 2010 Agreement, less the overtime already paid in the sum of $17,906.61.
b)$11,125.23 with respect to his overtime entitlement under the 2013 Agreement, less the overtime already paid in the sum of $12,088.70;
c)$127,793.87 with respect to his rest relief overtime entitlement under the 2010 Agreement;
d)$63,738.31 with respect to his rest relief after overtime entitlement under the 2013 Agreement;
e)$5,002.00 with respect to his meal allowance entitlement under the 2010 Agreement; and
f)$102.10 with respect to his meal allowance entitlement under the 2013 Agreement.
Background
The applicant is a current employee of the respondent.
In early 2002, the applicant was employed by Australia Post as a Postal Delivery Officer (PDO) at the Collingwood Post Office. The role involved sorting mail and performing other duties for the respondent. The applicant’s hours of work were roughly from 6:00am until 9:00am.
In late 2004, the applicant took up employment with Australia Post as a Postal Services Office (PSO) at the respondent’s Melbourne Parcel Facility in Sunshine West. The applicant’s rostered hours of work in this position were roughly from 3:00pm or 3:30pm until 7:00pm or 7:30pm. He worked in that position concurrently with the PDO position. Overtime worked as a PSO was calculated on the total hours worked as a PSO and the calculation did not include the hours worked as a PDO.
The Court did not have the benefit of an agreed statement of facts however it is clear from the applicant’s outline of submissions that it concedes that the applicant was paid for the additional hours worked in both the PDO and PSO role.
The applicant’s employment during the claim period from 28 October 2010 to 15 October 2014 was covered by the Australia Post Enterprise Agreement 2010 (‘2010 Agreement’) and the Australia Post Enterprise Agreement 2013 (‘2013 Agreement’).
Issues
The key issue in the proceeding is whether the applicant’s PDO role and PSO role applied cumulatively for the purpose of calculating the applicant’s entitlements to overtime, rest relief and meal allowances under the applicable enterprise agreements.
The applicant submits that the PDO role and PSO role apply cumulatively as neither agreement provided for multi-hiring arrangements, and the proper construction of the agreements supported the cumulative recognition of duty under both roles.
The respondent submits that the two positions occupied by the applicant were separate engagements under separate employment contracts and they were separate and distinct positions for the purposes of determining employment entitlements such as shift penalties and overtime.
Relevant provisions of the enterprise agreements
The applicant relies on the following clauses of the 2010 Agreement and 2013 Agreement (collectively referred to as the agreements) in support of its claim:
a)clause 14.10.1 – Overtime meal allowance;
b)clause 17.1.3 and 17.1.4 – General overtime (as applied to part-time employees); and
c)clause 17.4.1 – Rest relief after overtime.
Clause 14.10.1 provides:
14.10 Overtime Meal Allowance
14.10.1An employee shall be paid an overtime meal allowance of $14.50 when the employee is required to work at least:
(a) 1 hour of overtime continuous with ordinary duty. In determining whether or not an overtime attendance is continuous with ordinary duty, unpaid meal breaks are to be disregarded;
(b) 5 hours overtime on a day the employee is not rostered for ordinary duty;
(c) an additional 5 hours overtime on a day on which eligibility for payment of a first meal allowance has already been established under 14.10.1(a) or 14.10.1(b).
Clause 17.1 provides:
17.1.3 Hourly Overtime Rate
(a) The hourly overtime rate for overtime payment is ascertained by the following formula:
(A ÷ 313 x 6 ÷ 36.75) x P
Where:
· A is the annual salary; and
· P is the prescribed rate.
(b) For the purpose of 17.1.3(a), the prescribed rates (P) for overtime duty are:
(i)Monday to Friday – 150% for first 3 hours and 200% thereafter;
(ii)on public holidays – 250%;
(iii)on Sunday – 200%; and
(iv)on Saturdays –
· for non-shiftworkers – 150% for the first three hours and 200% thereafter; and
· for shiftworkers – 200%.
(c) For the purpose of this clause, a shiftworker means an employee who is rostered on:
(i)alternating or rotating shifts or a constant shift involving regular ordinary duty after 1.00pm on Saturday; or
(ii)a shift which, but for it being worked continuously with the approval of Australia Post or to suit Australia Post’s convenience, would fall within clause 17.1.3(c)(i).
Clause 17.1.4 provides:
17.1.4 Part-Time Employees
(a) Part-time employees are eligible for overtime penalty rates applicable to full-time employees in the following circumstances:
(i)duty in excess of 7 hours 21 minutes on any one day;
(ii)where an employee is required to work on more than 5 days per week.
Clause 17.4.1 provides:
17.4.1 10 Hour Break
(a) An employee, after the completion of overtime and ordinary duty on one day / shift, must be given at least 10 consecutive hours off duty, including travelling time, before resuming any duty on the next day / shift. Any absence during ordinary working time which occurs within the 10 hours will be without loss of salary.
(b) Provided that if such an employee is required by Australia Post to resume or continue work without having had 10 consecutive hours off duty the employee is to be paid at double rates until released from duty for that period, and will then be entitled to be absent for 10 consecutive hours of duty, without loss of pay for ordinary working time occurring during that absence.
The Evidence
The applicant relied on two affidavits that he swore on 12 May 2017 and 14 August 2017.
The respondent relied on two affidavits being an affidavit of Jefferson Gabriel, a doc supervisor employed by the respondent and Sam Amarei, employed in the same position by the respondent, both sworn on 23 June 2017.
Mr Lacson gave evidence that he first worked as a Postal Delivery Pfficer at the Fitzroy post office in 1995. He stopped work there in late 1995 to temporarily return to the Philippines.
In 2001 he took up a fixed term contract as a Postal Delivery Officer which involved working three hours per day Monday to Friday 6:00am to 9:00am at the Fitzroy post office. In about February 2002 he was offered a permanent contract and became a permanent part-time PDO on 20 February 2002 working three hours a day, five hours per week, with the hours from 6:00am to 9:00am. He continues to work these hours in that role as a PDO. This job involved him sorting mail and associated duties.
In March 2001 he was looking for more work and applied for and obtained a permanent position in the role of Postal Sorting Officer at the Australia Post Port Melbourne Business Centre.
In 2004 the Port Melbourne facility was relocated to a new facility known as the Melbourne Parcel Facility (‘MPF’). After moving to the MPF, Mr Lacson received a promotion and has worked the afternoon shift at MPF as a Postal Services Officer. That shift commenced initially at 3:00pm and then subsequently at 3:30pm and he had four rostered hours of work.
Mr Lacson worked at the bulk counter section at the MPF. The bulk counter section deals with the collection and sorting of bulk mail whereby drivers from the transport group of the respondent collect bulk mail and parcels direct from businesses and bring those to the north dock of the MPF. Mr Lacson’s role involved loading and unloading bulk mail and parcels at the dock with a forklift. Once unloaded the bulk mail and parcels are isolated or separated from other mail and parcels of the facility and are checked for discrepancies in relation to postage. The bulk mail is then sorted into different cardboard trays or plastic letter tubs and processed and dispatched for delivery. Between 2004 and 2010 Mr Lacson generally worked extended hours in the bulk area of the MPF from 3:30pm to 10:00pm.
In about August or September 2010, Mr Lacson was directed by the senior Manager, Christine Dewes that he and other PSO part-timers in bulk should stop working extended hours and he reverted to working the four hours each day in the PSO role.
In about 2010 Mr Lacson spoke to supervisors in the dock area of the MPF and that he obtained further hours there working from 7:30pm and continuing for 3 hours and 21 minutes each night. This would take him to a general finishing time of 11:21pm each night with a 30 minute break. He gave evidence that he spoke to the bulk afternoon shift organiser George Topatzis in about 2010, shortly after he commenced working in the dock and was told that he should not clock off after finishing in the bulk area but simply continue working and clock off when he finished work for the day.
It was not in dispute that when Mr Lacson worked in excess of seven hours and 21 minutes at Sunshine, he was paid over time. However the nub of the applicant’s complaint is that in calculating overtime and rest relief and meal allowances, the respondent did not take into account the hours that the applicant worked at the Collingwood facility from 6:00am to 9:00am each morning.
The applicant put that there were four issues for determination in this proceeding:
a)whether it is permissible for the respondent to treat the two roles performed by the applicant as separate and distinct for the purposes of entitlements under a single agreement;
b)what is the proper construction and application of the overtime clause in the relevant certified agreement;
c)the proper construction and application of the meal allowance clause; and
d)the application and construction of the rest relief clause.
The issue in this case is whether the respondent correctly treated the applicant’s employment as a PDO in Collingwood as separate and distinct from his workers as a PSO at the Melbourne parcel facility in Sunshine West.
In the Court’s view, this question is the central question to be determined.
It is accepted by the parties that Mr Lacson’s work as a PDO and PSO fell within the coverage of:
a)Australia Post Fair Work Agreement 2010 (‘2010 Agreement’);
b)Australia Post Fair Work Agreement 2013 (‘2013 Agreement’).
Mr Lacson contends that his work in his PDO role and PSO role can and must apply cumulatively for the purposes of the 2010 and 2013 Agreements because:
a)both the PDO and PSO roles were covered by the 2010 Agreement and 2013 Agreement (respectively);
b)neither the 2010 Agreement and 2013 Agreement provided for multi-hiring agreements; and
c)the proper construction of each the 2010 Agreement and the 2013 Agreement support the cumulative recognition of duty under both roles.
It is accepted that until 2010, the pay for both roles was recorded on a single payslip, provided by Australia Post each fortnight and he performed both roles under the same personnel number. In August 2010 Australia Post announced that as a result of a new HR/payroll system, employees with multiple “jobs” would retain their current personnel numbers but would be given a new number for their second/third jobs. He continues to receive a single annual PAYG payment summary relating to both roles.[1]
[1] Applicant’s submissions [13].
There was general agreement about the principles to be applied in the interpretation of certified agreements and I adopt the helpful submissions of Mr McKenna of counsel for the applicant which I reproduce below:
8. The principles for the interpretation of enterprise agreements are now well established. These include the following:
a. The construction of an enterprise agreement begins with a consideration of the ordinary meaning of its words.[2] Regard must be had to the context and purpose of the provision or expression being construed.[3] Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It may extend to the entire document of which it is a part or to other documents with which there is an association. It may also include ideas that gave rise to an expression in a document from which it has been taken (such as antecedent enterprise agreements);[4]
b. The words from an enterprise agreement must not be interpreted in a vacuum divorced from industrial reality.[5] The search is for the meaning intended by the framers of the document, bearing in mind that such framers were likely of a practical bent of mind. It is justifiable to read the enterprise agreement to give effect to its evidence purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading;[6]
c. It is critical that a construction of enterprise agreements should contribute to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the agreement;[7] and
d. A court is not, however, free to give effect to some anteriorly derived notion of what would be just and fair, regardless of what has been written into the enterprise agreement.[8] Enterprise Agreements should make sense according to basic conventions of the English language.[9]
[2] City of Wanneroo v ASU (2006) 153 IR 426 at [53] per French J and Australian Nursing and Midwifery Federation v Eastern Health [2013] FCAFC 137 at [11].
[3] City of Wanneroo at [52]. Polan v Goulburn Valley Health [2016] FCA 440 at [32], Amcor Ltd v CFMEU (2005) 222 CLR 241 and Eastern Health at [11].
[4] City of Wanneroo at [53].
[5] City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379.
[6] Kucks v CSR Limited (1996) 66 IR 182 at 184 and Polan at [34].
[7] Polan at [34], Amcor v CFMEU at [96].
[8] Kucks at 184.
[9] City of Wanneroo v Holmes (1989) 30 IR 362 at 380.
The respondent also referred the Court to Transport Workers Union of AustraliaPty Ltd v Linfox Australia (2014) 318 ALR 54 at [29] – [35] in support of the proposition that the applicant’s construction was impractical, does not accord with industrial realities (whatever they may be) and is contrary to common sense.
The relevant provisions
The relevant legislative provisions relied upon by the parties are ss.50 to 52 of the Fair Work Act2009 (Cth) (‘the Act’) which are set out below:
50 Contravening an enterprise agreement
A person must not contravene a term of an enterprise agreement.
Note 1: This section is a civil remedy provision (see Part 4‑1).
Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).
51 The significance of an enterprise agreement applying to a person
(1) An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.
(2) An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.
52 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.
Multi-hiring
The applicant contends that:
a)where an employee voluntarily works outside his or her ordinary hours and that additional work is covered by a different award (or industrial agreement), such an arrangement is regarded as a new arrangement. In those circumstances that additional work is regarded as a new engagement and the employee is paid at the ordinary rate under the applicable award that applies to the additional work (Australian Tramway Employees Association v Australian Tramways Employees Association (‘Tramways’) (1936) 36 CAR 179).
b)parties to an industrial agreement may agree to a multi-hiring clause in an enterprise agreement which allows an employer to engage an employee on a second and separate engagement. The effect of a multi-hiring clause was described in Re Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award (1997) IR 250 (per Ross VP, Drake D.P. and Wilks C.) as follows:
[i]n effect the application seeks to create a mechanism which would allow what is commonly referred to as a “multi-hiring”. Multi-hiring allows a full-time or part-time employee to also be engaged as a casual employee in the same establishment outside normal working hours.
The applicant also referred the Court to Spotless Services Australia – Hospitality Industry (General Award 2010) (2009) AIRCFB 992, where a full bench of the AIRC rejected an application to include a multi-hiring clause in an Award.
At 440 the full bench held:
We have decided that it is not appropriate to grant the application in the form sought. In our view the introduction of multi-hiring is properly a matter for bargaining between the parties at the workplace or enterprise level. In reaching this conclusion we have applied the observations made earlier in this decision about the legislative framework and the role of facilitative provisions. We have also had regard to the following factors:
(i) the practical effect of the AHA’s multi-hiring proposal is the reduction of overtime penalty rates. Subject to the conditions specified in the proposed clause an employer would be able to engage a full-time employee to perform additional work outside normal hours, for a 25% premium. In the absence of such a provision the employee would be entitled to a premium of 50% of the first two hours and 100% thereafter. Such a reduction in the award safety net is inconsistent with the proper role of facilitative provisions and is more appropriately dealt with through part VIB certified agreements or Australian workplace agreements.
One basis of the full bench rejecting the application was that it was of the view that matters canvassed by Spotless in relation to a multi-hiring clause were capable of being addressed in negotiations at an enterprise or workplace level.
The applicant also referred to and relied upon Queensland Independent Education Union of Employees v Moreton Bay College [2002] QIRComm 175 (‘Moreton Bay College’). That decision concerned the employment of a person who was initially employed as a groundsman at a secondary school who applied for and was employed as caretaker at the school. The employment in each role was covered by the same enterprise agreement. As is the case in this proceeding, there were two agreements with one succeeding the other with the operative provisions in identical terms. The Commission held that the work as a caretaker was covered by the Miscellaneous Workers Award – State and the work as a groundsman was covered by the Green Keepers Award – State.
The applicant union in that case contended that the two positions occupied by the employee were encompassed within a single contract of employment and that the hours worked in each position were combined for the purposes of calculating ordinary time and overtime.
The respondent employer argued that there were separate and distinct contracts of employment – one covering the duties as a groundsman the other covering the duties performed as a caretaker. It was said that because the employee had retained the employment of the respondent as a groundsman when his contract as a caretaker ceased, this pointed to there being two contracts of employment.
Commissioner Ashbury held that there were two contracts of employment but with the proviso that it was in circumstances where the work under each contract was regulated by different industrial instruments. She stated:
Where work performed in each of the two engagements was not covered by the same Award, the Full Bench in Re Hotels and Liquor Industry Award, in respect of employer witnesses who had indicated that requests for multi-hiring were generated by clerical employees, stated:
“They [the employer witnesses] were unaware that the existence of a separate Clerks Award enabled them to employ Clerks on a casual basis to perform duties such as waiting.” (1992) 139 QGIG 30 at 32.”.
In my view, that statement by the Full Bench in Re Hotels and Liquor Industry Award clearly establishes that an employer and an employee are not precluded from entering into two separate contracts of employment which operate concurrently, provided that the work performed under those contracts of employment is not regulated by the same award or industrial instrument (emphasis added).
It is clear from the evidence in this case that Mr Wall entered into a contract of employment with the respondent to perform caretaking duties with effect from 23 June 1995. It is also clear that this contract of employment was separate from the contract of employment as a Groundsperson which was already in effect at that time. Mr Wall made application for the position of Caretaker, Secondary School. His application was successful and he was appointed to that position. The scope of the Caretaker position was set out in a job description which differed substantially from the job description applicable to his existing position as Groundsperson. The correspondence to Mr Wall dated 21 April 1995, clearly indicated that the two positions of Caretaker and Groundsperson were separate and that the contract of employment relating to one could be terminated without affecting the other. This correspondence was forwarded to Mr Wall at his request and to allay his concerns.
On balance I am satisfied that there were two contracts of employment between Mr Wall and the respondent…..
The respondent, Australia Post contends that the although the Commissioner was correct in finding that there were two contracts of employment, she was wrong in finding that that the parties were precluded from entering two contracts of employment where the work is regulated by the same award or industrial agreement for the reason that the passage from the Full Bench decision of Re Hotels and Liquour Industry referred to by Commissioner Asbury did not support that conclusion.
The respondent’s submissions regarding multi-hiring
The principle submissions of the respondent were that by reason of the operation of s.52(2) of the Act the enterprise agreements applied to Mr Lacson in relation to his particular employment as a PDO at Collingwood and separately in relation to his particular employment as a PSO at Sunshine. If that was accepted, the position was that each of those jobs are to be treated separately and distinctly and pursuant to separate contracts of employment and there has been no aggregation of hours or that the hours worked should be based on a cumulative assessment of the hours worked at Collingwood and the hours worked at Sunshine.
Section 52 of the Act provides:
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.
Counsel for the respondent made a specific reference to the explanatory memorandum to the Fair Work Bill, in particular [205] which provides:
Subclauses 47(3), 48(3), 52(2) and 53(6) make it clear that a reference in the Bill to a modern award or enterprise agreement applying to, or covering, an employee is a reference to the award or agreement applying to, or covering, the employee in relation to a particular employment. This means that, if a national system employee has more than one job, each job is treated separately in determining the effect of an award or agreement on the employee’s entitlements in relation to each job (emphasis added). For instance, the rule that only one enterprise agreement can operate in relation to a person at a particular time (see cl.58) does not mean that two agreements cannot cover, or apply to, an employee in relation to two different jobs.
Counsel for the applicant conceded that if the Court found that there were two contracts of employment, then s.52(2) of the Act is fatal to the applicant’s claim.
Counsel for the applicant put that the reference to “jobs” in the explanatory memorandum could not be used to expand the meaning of the phrase “particular employment” in s.53(2) of the Act to mean that a person could have two contacts of employment with the one employer.
Consideration in relation multi-hiring
In ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53 (‘ALDI Foods Pty Limited’) at [26] the High Court (a plurality consisting of Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ with whom Gageler J agreed at [105]) considered inter alia the operation of ss.52, 53, 56 and 58 of the Act and stated:
26. Section 52 of the Act deals with when an agreement “applies" to an employee. Importantly, ss 52 and 53 expressly indicate that an enterprise agreement may cover an employee when it is not in operation, but it can only apply to an employee when it is in operation.
27. Section 52(1) sets out when an enterprise agreement applies to an employee, employer or employee organisation. It provides:
“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."
28. Section 53(1) provides that "[a]n enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer."
29. Section 53(6) provides:
“A reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment.”
30. Because an employee may be covered by more than one agreement at one time, s 58(1) of the Act provides that only one enterprise agreement can apply to an employee at a particular time. That is because only one set of rights and obligations can be in operation in relation to the work actually performed by the employee at that time in relation to particular employment. Given the terms of ss 52 and 53, it is apparent that an employee may be covered by an agreement that applies to him or her, and by an agreement that does not, at that time, apply to him or her. Furthermore, an employee may be covered by more than one agreement at any one time. To speak of an employee being covered by an agreement is to speak of the agreement providing terms and conditions for the job performed by, or to be performed by, the employee.
31. In this context, the natural meaning of the reference in s 53(6) to particular employment of an employee is to the description of the employee's job in the agreement. In this regard, the terms of cl 5 of the Agreement refer to the job descriptions of employees whose employment the Agreement will regulate when it comes into operation. It is a natural and ordinary use of language to speak of the Agreement as covering these employees.
That case concerned the power of the Fair Work Commission to approve an enterprise agreement for a new enterprise made with existing employees of the employer who have agreed to work, but are not at that time actually working as employees in the new enterprise. It involved consideration of the question of whether certain employees were covered within the meaning of s.53 of the Act by an enterprise agreement. The High Court’s consideration of the phrase “in relation to particular employment” arises in quite a different context to the present. The respondent acknowledges that the decision in ALDI Food Pty Limited is not directly on point and that the Court is not as a matter of law or by reason of the operation of the doctrine of precedent required to determine the issue concerning the effect of s.52(2) of the Act in favour of the respondent’s submissions. However, I accept that the High Court’s treatment of the explanatory memorandum and its analysis of the meaning of the phrase “particular employment” is relevant to the task that this Court must undertake.
At [75] the plurality stated in relation to the meaning of “particular employment” as it appears in s.53(6) of the Act:
In the course of argument in this Court it was suggested on behalf of the SDA that s 53(6) of the Act, in speaking of “the agreement covering the employee in relation to particular employment", is speaking exclusively of a case where the employee is actually performing work under the agreement at that time. That understanding of s 53(6) requires one to read into the provision words that are not there. Read without the SDA's proposed gloss, it is apparent that the provision is simply referring to the employee's job as described in the agreement rather than to the actual performance by the employee of the tasks involved in that job. This understanding accords with the Explanatory Memorandum for the Bill, which treats “particular employment” as synonymous with a “job”.
The respondent submits that the High Court’s analysis of the concept and meaning of “in relation to particular employment” at [31] and [77] indicates that ss.52 and 53 of the Act are concerned with the employees “job”, or description of the employees “job” in the enterprise agreement.
The respondent also points to the fact that the Court used the explanatory memorandum in construing s.53(6) of the Act and is an indication that the Court should similarly use the explanatory memorandum in construing s.52(2) of the Act and determining the effect of s.52(2) in the present case. The applicant submitted that the ALDI Food Pty Limited decision does not involve the High Court considering whether separate roles should attract different treatment.
In the present case the applicant has two separate and distinct part-time positions which were obtained at different times.
In this case the facts support a finding that Mr Lacson was employed as a PDO at the Collingwood Post Office and the work actually performed by him at that time was as PDO and described in the enterprise agreement classification as a Postal Delivery Officer. His hourly pay rate as set out in his pay advice for that position was $21.63 per hour as at October 2010. He had a specific personnel number for that position (exhibit RVL 13 to his affidavit of 12 May 2017).
In relation to the Postal Services Officer position, that position is set out in the classification clause in those terms and had its own personnel number and a different hourly wage rate ($23.62 as at October 2010).
As stated above at [49], the respondent also contended that there was no authority for the proposition that there cannot be two contracts of employment where each contract is subject to the operation of the same industrial instrument.
In my view, the wording of s.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. I am fortified in that view given that the High Court embraced the meaning of “particular employment” as set out in the relevant part of the explanatory memorandum. In particular I refer to the second sentence of clause 205 in the explanatory memorandum which stated:
[i]f a national system employee has more than one job, each job is treated separately in determining the effect of an award or agreement on the employees’ entitlements in relation to each job.
The High Court by reference to the explanatory memorandum in [75] of ALDI Foods Pty Limited has expressly stated that the expression “particular employment” means a reference to jobs as described in the enterprise agreement.
In the Moreton Bay College decision, argument was directed to the particular awards that governed each part of the works performed by the employee. Each of the roles of groundsmen and caretaker were covered by the same certified agreement. In the present matter, no argument has been directed at whether separate awards applied to the employment but I presume that they do not. However, it does not mean that that Mr Lacson did not enter into two separate and distinct contracts of employment at different times, performing different work at different places with the same employer. In those circumstances, I do not understand why s.52(2) of the Act should not apply to allow the certified agreement to apply separately to each separate employment. It is apparent that an important feature of each of the Tramways case, Moreton Bay College case and Michaelmas v Broderick were that the types of work being performed by the particular employee concerned was separate and distinct and the contracts that led to that work being performed were separate and distinct.
I do not regard the Moreton Bay College decision as authority for the proposition that there can only be more than one employment relationship between the same parties if each contract of employment is governed by a different industrial instrument. Further, the Tramways case was decided in a significantly different legislative and industrial setting. It may have been the case in 1936 that one workplace was subject to a number of different industrial awards covering each of the types of work undertaken by employees of an enterprise. However where a single agreement is drafted to cover enterprises carried on over a number of sites and which refers to a range of jobs undertaken within that enterprise, I do not accept that s.52(2) of the Act should not be read in the way contended for by the respondent in the particular circumstances thrown up by this case.
Having regard to the provisions of s.52(2) the Act, the hours worked by the employee, Mr Lacson at the Collingwood post office are not to be calculated cumulatively with the hours worked at the Bulk Handling Facility. In those circumstances, there has been no breach of the certified agreement by the respondent.
Counsel for the applicant contended that if the definition of employment in s.52(2) of the Act was expanded to include a reference to jobs or roles, then it would introduce into the Act the capacity to contract out of an industrial instrument. The Court was referred to the well-known case of Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; (2002) 121 IR 250 at [29] – [32] as authority for the proposition that an employer cannot make an agreement to contract out of the effects of an industrial instrument. Counsel submitted that if Parliament intended that the Act deviate from the position that a party cannot contract out of the effect of an industrial instrument, it would have done so in clear terms rather than by a reference to “jobs” contained in the explanatory memorandum.
In this case the respondent is not purporting to contract out of the terms of the enterprise agreements, rather it is conducting itself on the basis that there are in fact two employments which are separate and distinct from one another and it was entitled to do this by reason of S.52(2) of the Act.
I conclude that the respondent is not in breach of the enterprise agreement in failing to aggregate the hours worked in each position occupied by the applicant. Accordingly, I dismiss the application.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 8 March 2018
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