FEDERAL COURT OF AUSTRALIA
Lacson v Australian Postal Corporation [2019] FCA 51
Appeal from: Lacson v Australian Postal Corporation [2018] FCCA 511 File number: VID 349 of 2018 Judge: MORTIMER J Date of judgment: 1 February 2019 Catchwords: INDUSTRIAL LAW – appeal from orders of Federal Circuit Court dismissing claim for unpaid entitlements – where appellant argued that different work performed by appellant for the same employer at two different locations constituted a single “employment” under the relevant enterprise agreements – construction of the term “particular employment” in s 52(2) of the Fair Work Act 2009 (Cth) – consideration of whether construction accepted by Federal Circuit Court permitted “contracting out” of enterprise agreement – appeal dismissed Legislation: Fair Work Act 2009 (Cth) ss 47, 48(5), 50, 51, 52(1), 52(2), 53, 57, 58, 195, 256A, 227(5), 278, 281A, 384, 570(2) Cases cited: Aldi Foods Pty Ltd v Shop, Distributive and Allied Employees Association [2017] HCA 53; 92 ALJR 33
BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72; 252 FCR 97
Choppair Helicopters Pty Ltd v Bobridge (No 2) [2018] FCA 700
Country Carbon Pty Ltd v Clean Energy Regulator [2018] FCA 1636
Leadbeater’s Possum Inc v VicForests [2018] FCA 178; 228 LGERA 255
Queensland Independent Education Union of Employees v Moreton Bay College [2002] QIRComm 175
Re Hospitality Industry — Accommodation, Hotels, Resorts and Gaming Award 1995 (1997) 77 IR 425
Re Hospitality Industry (General) Award 2010 [2009] AIRCFB 992; 193 IR 174
Textile, Clothing and Footwear Union ofAustralia v Givoni Pty Ltd [2002] FCA 1406; 121 IR 250
Date of hearing: 21 August 2018 Date of last submissions: 31 August 2018 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 134 Counsel for the Appellant: Mr J C McKenna Solicitor for the Appellant: Ryan Carlisle Thomas Counsel for the Respondent: Mr J R M Tracey Solicitor for the Respondent: MinterEllison ORDER
VID 349 of 2018 BETWEEN: ROBERT LACSON
Appellant
AND: AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
1 FEBRAURY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
INTRODUCTION AND SUMMARY
This appeal concerns the construction of s 52(2) of the Fair Work Act 2009 (Cth), together with the question whether the work performed by the appellant for the respondent at two different locations, at two different times, and in the performance of two different sets of duties should, for the purposes of the relevant enterprise agreements, be seen as one “employment” or, to more accurately reflect the way the appellant puts the argument, one “particular employment” for the purposes of s 52(2) of the FW Act.
The Federal Circuit Court held that it should not: see Lacson v Australian Postal Corporation [2018] FCCA 511.
In my opinion, for the reasons set out below, there was no…
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Details
- Case
- [2019] FCA 51
- Decision Date
CaseChat Overview and Summary
In the case of Lacson v Australian Postal Corporation, the appellant, a former employee of Australia Post, appealed against the decision of the Federal Circuit Court which dismissed his claim for unpaid entitlements. The appellant argued that the work he performed at two different locations for Australia Post constituted a single "employment" under the relevant enterprise agreements, thereby entitling him to overtime, rest relief, and meal allowance. The Federal Circuit Court held that the work performed by the appellant at the two locations constituted separate and distinct permanent part-time positions, and therefore, the entitlements claimed by the appellant were not payable.
The legal issues before the court were whether the two periods of work performed by the appellant for Australia Post should be viewed cumulatively as one "particular employment" for the purposes of the agreement, and whether the construction of the term "particular employment" in s 52(2) of the Fair Work Act 2009 (Cth) permitted "contracting out" of enterprise agreement. The court held that the two periods of work were not cumulative, and the construction of the term "particular employment" did not permit "contracting out" of enterprise agreement. The court found that the Federal Circuit Court did not err in its approach to the interpretation of s 52(2) of the Fair Work Act, and dismissed the appeal.
The court's reasoning was based on the principles of statutory interpretation and the objective of the Fair Work Act. The court held that the term "particular employment" in s 52(2) of the Fair Work Act should be interpreted in its ordinary and natural meaning, and that the two periods of work performed by the appellant were separate and distinct employments. The court also held that the construction of the term "particular employment" did not permit "contracting out" of enterprise agreement, as it would be contrary to well-established principles of industrial law. The court found that the Federal Circuit Court did not err in its approach to the interpretation of s 52(2) of the Fair Work Act, and dismissed the appeal.
The final orders of the court were that the appeal be dismissed, and the decision of the Federal Circuit Court be affirmed. The appellant was not entitled to the unpaid entitlements claimed, and the Federal Circuit Court's decision was correct. The court did not make any findings in relation to the accuracy of the amounts claimed as entitlements, in light of its findings on the construction of s 52(2) of the Fair Work Act. The parties were directed to confer about the amounts claimed if the appellant was successful on all claims.
The legal issues before the court were whether the two periods of work performed by the appellant for Australia Post should be viewed cumulatively as one "particular employment" for the purposes of the agreement, and whether the construction of the term "particular employment" in s 52(2) of the Fair Work Act 2009 (Cth) permitted "contracting out" of enterprise agreement. The court held that the two periods of work were not cumulative, and the construction of the term "particular employment" did not permit "contracting out" of enterprise agreement. The court found that the Federal Circuit Court did not err in its approach to the interpretation of s 52(2) of the Fair Work Act, and dismissed the appeal.
The court's reasoning was based on the principles of statutory interpretation and the objective of the Fair Work Act. The court held that the term "particular employment" in s 52(2) of the Fair Work Act should be interpreted in its ordinary and natural meaning, and that the two periods of work performed by the appellant were separate and distinct employments. The court also held that the construction of the term "particular employment" did not permit "contracting out" of enterprise agreement, as it would be contrary to well-established principles of industrial law. The court found that the Federal Circuit Court did not err in its approach to the interpretation of s 52(2) of the Fair Work Act, and dismissed the appeal.
The final orders of the court were that the appeal be dismissed, and the decision of the Federal Circuit Court be affirmed. The appellant was not entitled to the unpaid entitlements claimed, and the Federal Circuit Court's decision was correct. The court did not make any findings in relation to the accuracy of the amounts claimed as entitlements, in light of its findings on the construction of s 52(2) of the Fair Work Act. The parties were directed to confer about the amounts claimed if the appellant was successful on all claims.
Orders
Orders of the court
1. The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
In my opinion, for the reasons set out below, there was no error in the approach taken by the Federal Circuit Court, and the appeal should be dismissed.BACKGROUND The findings I set out in this section of my reasons were not the subject of any real dispute between the parties. Indeed, there was little if any factual dispute in this appeal: the questions were legal ones, or questions of characterisation of undisputed facts. Aside from a period in 1995 where he worked for Australia Post before returning to the Philippines, the appellant’s employment with Australia Post commenced in approximately 2001. He remains employed by Australia Post. The appellant was first employed on a fixed term contract on a casual basis in the position of Postal Delivery Officer at the Collingwood Post Office. In the same year, the appellant then also secured a permanent part-time position as a Postal Sorting Officer, initially located at Australia Post’s Port Melbourne Business Centre, and since 2004 located at a new facility called the Melbourne Parcel Facility, where (also in 2004) he received a promotion to the positon of Postal Services Officer. In February 2002, the appellant’s employment as a Postal Delivery Officer changed to a permanent part-time classification, but continued to involve working three hours per day Monday to Friday, 6.00 am to 9.00 am at Collingwood Post Office. It appears that the Postal Services Officer position was always relevantly classified as a permanent part-time position, after the appellant completed a training period. His evidence to the Federal Circuit Court was that, at least since 2004 when he moved to the Melbourne Parcel Facility, he would go home to rest after his Postal Delivery Officer work at Collingwood, and in the afternoon would commence his Postal Services Officer work initially at 3.00 pm (and subsequently at 3.30 pm) for his four rostered hours of work. It was in this Postal Services Officer role that he commenced performing overtime: see [11] below. The uncontested evidence was that at Melbourne Postal Facility the appellant’s tasks consisted largely of sorting bulk parcels, some of which was performed by the appellant driving a forklift. Overtime was performed in a different area of the Melbourne Postal Facility – but still generally involved forklift driving. At the Collingwood Post Office, the appellant’s tasks largely consisted of sorting mail. In 2010 the appellant spoke to supervisors in the dock area of the Melbourne Postal Facility, seeking extra hours. He obtained further hours there working from 7.30 pm and continuing for 3 hours and 21 minutes each night. This took him to a general finishing time of 11.21 pm each night, with a 30 minute break during this time. He would then start again at Collingwood Post Office the next morning at 6.00 am. It is relevant to one of the claims the appellant makes that this meant he had less than a ten hour break in between finishing at Melbourne Postal Facility and starting at Collingwood Post Office. It was common ground, and the Federal Circuit Court found, that overtime worked by the appellant was calculated on the total hours he worked as a Postal Services Officer, and that calculation did not include the hours he worked as a Postal Delivery Officer at Collingwood Post Office.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The appellant did not dispute this summary, and I find it is accurate.THE APPELLANT’S CLAIM BEFORE THE FEDERAL CIRCUIT COURT AND THE FEDERAL CIRCUIT COURT DECISION The Federal Circuit Court summarised the appellant’s claims in its reasons, and since there is no dispute about their terms, it is not necessary to set them out in detail. The appellant claims entitlements to overtime, rest relief and meal allowance between 28 October 2010 and 15 October 2014, being the time at which the appellant stopped working extra hours in the Postal Services Officer position. It is not in dispute that he has not been paid these amounts. There is also no dispute the entitlements he claims exist under both the 2010 and 2013 Agreements: see clauses 14.10.1 (Overtime meal allowance); clauses 17.1.3 and 17.1.4 – (general overtime, applicable to part-time employees); and clause 17.4.1 (rest relief of 10 hours after overtime). The question is whether those entitlements apply to the appellant, and that in turn depends on whether the two periods of work in which the appellant engaged for Australia Post each day should be viewed cumulatively, as one “particular employment” for the purposes of the agreement. If the two periods are not so viewed, the appellant accepts he has been paid correctly. Australia Post contends the two jobs performed by the appellant were separate and distinct permanent part-time positions, under separate and distinct contracts of employment, and therefore the entitlements claimed by the appellant are not payable. The amounts claimed were significant, and are set out at [4] of the Federal Circuit Court reasons: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; andf)$102.10 with respect to his meal allowance entitlement under the 2013 Agreement. These were the amounts if the appellant was successful on all claims, and it can be seen some claims were qualified to avoid double payments. The Federal Circuit Court did not make findings in relation to the accuracy of the amounts claimed as entitlements, in light of its findings on the construction of s 52(2) of the FW Act. On the appeal, Australia Post agreed with the appellant’s submission that if the Court found the appellant was entitled to such payments, it would be appropriate for the parties to confer about the amounts claimed. The appellant also claimed before the Federal Circuit Court that if the meaning of “employment” in s 52(2) of the FW Act was expanded to include a reference to more than one job, then it would give an employer the capacity to contract out of an industrial instrument, contrary to well established principle. The appellant relied on Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; 121 IR 250 at [29]-[32].
Ratio Decidendi
Legal Principle Established
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