Metro Tasmania Pty Ltd v Scatchard

Link copied
Case Copied 31 min read

FEDERAL COURT OF AUSTRALIA

Metro Tasmania Pty Ltd v Scatchard [2022] FCA 1223

Appeal from: Scatchard v Metro Tasmania Pty Ltd [2022] FedCFamC2G 53
File number(s): TAD 6 of 2022
Judgment of: MCELWAINE J
Date of judgment: 14 October 2022
Catchwords: INDUSTRIAL LAW –Appeal from a decision in the Federal Circuit and Family Court of Australia (Division 2) - claim for underpayment pursuant to the Fair Work Act 2009 (Cth) – operation and interpretation of industrial agreement – whether primary judge erred in reasoning a roster could not be comprised of two documents – appeal allowed
Legislation:

Fair Work Act 2009 (Cth) s 54

Federal Court of Australia Act 1976 (Cth) s 25(1AA)
Cases cited:

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC 93

Construction, Forestry, Mining and energy Union v BHP Coal Pty Ltd [2011] FCA 1294

James Cook University v Ridd (2020) 278 FCR 566; [2020] FCAFC 123

Ridd v James Cook University (2021) 95 ALJR 878; [2021] HCA 32

Metro Tasmania Bus Operators Enterprise Agreement 2013 [2013] FWCA 5573

Metro Tasmania Bus Operators Enterprise Agreement 2016 [2015] FWCA 8508

Division: General Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 43
Date of hearing: 21 September 2022
Counsel for the Applicant: Ms V Bulut
Solicitor for the Applicant: Seyfarth Shaw Australia
Counsel for the Respondent: Mr R Reitano
Solicitor for the Respondent: Australian Rail, Tram and Bus Industry Union

ORDERS

TAD 6 of 2022
BETWEEN:

METRO TASMANIA PTY LTD

Applicant
AND:

JOHN SCATCHARD

Respondent

ORDER MADE BY:

MCELWAINE J

DATE OF ORDER:

14 OCTOBER 2022

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The orders made in the Federal Circuit and Family Court of Australia (Division 2) on 7 February 2022 are set aside.

3.The respondent’s application filed on 28 July 2021 in the Federal Circuit Court of Australia is dismissed.

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


REASONS FOR JUDGMENT

MCELWAINE J:

  1. The genesis of this appeal is a small claim filed pursuant to the Fair Work Act 2009 (Cth) (the Act) by Mr John Scatchard (the respondent) who is employed as a bus driver in Burnie, Tasmania by Metro Tasmania Pty Ltd (the appellant).  In his originating process filed in the Federal Circuit Court of Australia on 28 July 2021 he claimed $1,524.98 for 24 Saturdays worked between 4 October 2015 and 15 March 2020, for which he was paid time and a half when, in his view, he ought to have received payment at the double time rate pursuant to successive enterprise agreements.  Registrar Stone dismissed his application on 12 November 2021.  On 26 November 2021, he exercised his de novo right of review, which was heard by Judge Taglieri on 2 December 2021.  For the reasons published by her Honour on 7 February 2022, the review was upheld and the employer was ordered to pay the amount…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Metro Tasmania Pty Ltd v Scatchard and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FCA 1223
Decision Date

CaseChat Overview and Summary

In the matter of Metro Tasmania Pty Ltd v Scatchard, the Full Bench of the Federal Court of Australia considered an appeal from a decision of the Federal Circuit and Family Court of Australia. The appeal pertained to a claim for underpayment by an employee, pursuant to the Fair Work Act 2009 (Cth). The central issue was the interpretation of an industrial agreement and whether a roster comprised two documents, leading to a miscalculation of the employee's pay. The primary judge had ruled that the roster could not consist of two documents, and this decision was contested on appeal.

The legal issues revolved around the interpretation of the 2016 Agreement and the operation of the industrial agreement in question. Specifically, the court needed to determine whether the primary judge erred in concluding that the roster could not be comprised of two documents and if this led to an incorrect application of clause 21.1.5 regarding the alteration of an existing roster. The appeal hinged on the interpretation of the MOU and its relevance to the provisions of the 2016 Agreement. The primary judge's reliance on the MOU to interpret the Agreements, despite the prevailing and clear meaning of the Agreements, was also scrutinized.

The Full Bench found that the primary judge erred in her reasoning that the roster could not be comprised of two documents. This error was compounded by misinterpreting the MOU as contemplating a distinct or "stand alone" Saturday roster. The Full Bench held that the MOU should not have been used to interpret the Agreements since the Agreements themselves were clear and prevailing. Consequently, the appeal was allowed, the orders made by the Federal Circuit and Family Court were set aside, and the respondent's application filed in the Federal Circuit Court was dismissed. The decision underscored the importance of correctly interpreting industrial agreements and the role of the MOU in this context.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders made in the Federal Circuit and Family Court of Australia (Division 2) on 7 February 2022 are set aside.

3. The respondent’s application filed on 28 July 2021 in the Federal Circuit Court of Australia is dismissed.

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

Background

Background to the litigation

Ultimately, for the reasons that I explain I do not find the MOU useful in determining the correct interpretation of the provisions of the 2016 Agreement.THE UNCONTROVERSIAL FACTS The undisputed evidence before the primary judge is set out in four affidavits. Two from the operations manager of the appellant, Mr Greg Swain dated 11 October and 2 December 2021, one from the respondent dated 19 November 2021 and one from Mr David Ian Snook (a full time Bus Operator in the employ of the appellant). The primary judge made the following findings of fact:28 The applicant’s unchallenged evidence is as follows:·At [13] – [14] of his affidavit affirmed 19 November 2021: 13.From June 2008 to February 2021, I worked a five-day roster between Monday and Friday. During this time Saturday and Sundays were displayed on the roster with the words 'OFF' written against my name. Saturday and Sunday's (sic) were my two clear days off each week.14.From June 2008 until the end of December 2012, I volunteered to work on a various Saturday shift. When I volunteered to work on a Saturday during this time, I was paid double time (200%) for all hours worked.·He and other employees at the Burnie depot were not consulted about and did not agree to the terms of the MOU;·After the MOU was created: Greg Swain, Operations Manager at Burnie Depot posted a document on the noticeboard at the Burnie Depot next to the roster. This document allowed employees to write their name against Saturday shifts that they were willing to work. A new sheet would get posted next to the roster every 6 months for this to occur.·From time to time he volunteered for shifts by writing his name on that document against the Saturdays he was willing to work, and this document would remain alongside the current roster on which he was marked ‘OFF;·He was only paid at 150% for 24 Saturdays he worked between 4 October 2014 and 15 March 2021;·He has tried to get copies of his rosters but has been told by the respondent that they have been destroyed in accordance with the employer’s document retention policy;·In September 2020, the employer stopped the voluntary sign up arrangement for Saturdays in Burnie and he was paid pursuant to clause 24.6 of the 2020 EA; and·From February 2021, he has worked a seven day roster, a sample of which is annexure JS-5 to his affidavit affirmed 19 November 2021.29 The evidence of Mr David Snook largely corroborates what the applicant says. Importantly, that:(a)Before the MOU, the roster provided for a 5 day working week with Saturdays and Sundays being the “days off” and that when he volunteered to work on a Saturday he was paid at 200% of the ordinary rate; but (b) After the time of the MOU, when he volunteered for Saturday work he was paid at 150% until the new arrangements in around 2020.30 The evidence of Mr Swain is largely consistent with that of the applicant and Mr Snook about what occurred after the MOU was created until 2020, when the RTBU withdrew from their agreement under the MOU.31 Mr Swain confirms that for a period in 2020, after the withdrawal from the MOU, they paid employees who worked on Saturdays at 200%. Further, that the normal roster from 2021 provides for Saturday services in Burnie to be covered in the one “normal” rolling roster and samples are provided of that at GS-2 and GS-3 of his affidavit.46 The unchallenged evidence on behalf of the respondent is that to give practical effect to the MOU, Mr Swain placed a document on the notice board asking for bus operators to express interest about how many and which Saturdays they were willing to work.(Footnotes omitted.)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For these reasons in my respectful view, the primary judge erred, not as a matter of principle in the approach required to be applied to the interpretation of the Agreements, but rather in her pivotal reasoning at PJ [55]- [56] to the effect that the roster could not be comprised of two documents or two parts which then led her Honour to the erroneous conclusion at PJ [59] that what occurred in this case was an alteration of an existing roster within the meaning of cl 21.1.5, upon publication of the six monthly Saturday roster. In part these errors can be traced to her Honour’s interpretation of the MOU at PJ [58] as contemplating a distinct or “stand alone” Saturday roster. Her Honour with respect erred in employing the MOU to interpret the Agreements in circumstances where the Agreements prevail and are clear in meaning. CONCLUSION The appeal succeeds. I make the following orders:1.The appeal is allowed.2.The orders made in the Federal Circuit and Family Court of Australia (Division 2) on 7 February 2022 are set aside.3.The respondent’s application filed on 28 July 2021 in the Federal Circuit Court of Australia is dismissed.

Ratio Decidendi

Legal Principle Established

The next step in her Honour’s reasoning is the conclusion that the Saturday roster is an alteration of an existing roster at PJ [58]-[59]:I find that there was a process of varying the normal or rolling roster, which was fluid and not finalised until the employer published the third or amended third document. Logically, I do not accept the contention by the respondent that two documents collectively comprised the normal or rolling roster in this situation. This is particularly so, when the MOU refers to the arrangement in some aspects “standing alone” from the EA and being identified as “the Saturday roster”, which suggests it is separate and distinct from the normal or regular roster.The evidence in my view establishes what is consistent with alteration of existing rosters as provided for in clause 21.1.5.(Original Emphasis. Footnotes omitted.) At PJ [70] her Honour emphasised that conclusion:In my view, the facts in evidence establish that what occurred when the applicant worked on Saturdays comprised of a variation or alteration in his regular roster. The regular roster on the evidence had him marked as “off” on the 24 Saturdays he subsequently worked. As he worked on the 24 Saturdays that were marked as “off” and that were his rostered days off under clause 21.1.4 initially, clause 21.9 is invoked. Finally, and as a further step, her Honour at PJ [64] rejected a submission that “(DOC)” in cl 21.9 operates to confirm that what is meant by the words “works on a rostered day off”:I also understood the respondent’s submissions to involve the contention that the inclusion of “(DOC)” in clause 21.9 operates to qualify the meaning of “works on a rostered day off” or treat it as if the two terms mean the same. However, that construction is not meritorious when informed by the established principles relating to interpreting industrial Agreements for the following reasons:(a)As (DOC) appears in brackets, it more likely connotes an example of when a person is taken to work on a rostered day off, otherwise the clause would simply have been expressed as “where a bus operator has a day off cancelled, the actual time worked etc...”; (b)If the clause was intended to operate only for a DOC, it would be unnecessary to refer to rostered day off. The presence of both terms suggests a different meaning and purpose for including them particularly when well established principles of interpretation are applied and to give words used meaning; and (c)It would be contrary to logic for the clause to provide that double time is payable when the employer cancels a rostered day off at its instigation but not when an employee agrees to work on a rostered day off to assist the employer’s operational needs.(Original Emphasis. Footnotes omitted.) In reasoning in that way, the primary judge at PJ [66] rejected the submission that “DOC” is limited to cancellation of a rostered day off at the instigation of the employer.THE APPEAL TO THIS COURT