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:
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…
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- Case
- [2022] FCA 1223
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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