Mr Barend Badenhorst v Teys Bros (Naracoorte) Pty Ltd
[2011] FWA 5622
•23 AUGUST 2011
[2011] FWA 5622 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Barend Badenhorst
v
Teys Bros (Naracoorte) Pty Ltd
(U2011/5604)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 23 AUGUST 2011 |
Jurisdiction - Minimum employment period
[1] Mr Barend Badenhorst (the applicant) contends that he was dismissed by Teys Bros (Naracoorte) Pty Ltd (the respondent or the employer) on 18 February 2011. He has filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The employer disputes that it terminated the applicant’s employment and also objects to the application on the basis that the applicant had not served the minimum employment period of 26 weeks as at the date his employment ceased. The parties agreed, and directions were subsequently issued, that the issue of the minimum employment period would be dealt with ‘on the papers’. 1 In the event that the applicant succeeds on this issue, whether the employment was terminated at the initiative of the employer will be dealt with in the substantive hearing. This decision therefore deals only with the argument on the minimum employment period.
[2] The relevant provisions of the Act are as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
[3] It is common ground that the employer is not a small business employer and therefore the minimum employment period required to have been served by the applicant in order to be protected from unfair dismissal in accordance with s.382 of the Act is 6 months. It is also common ground that the applicant:
● Commenced employment on 1 July 2010;
● Suffered a work related injury on 23 August 2010;
● Had a continuous period of absence from employment between 11 September and 22 November 2010;
● Was in receipt of income maintenance payments pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act), during the period of absence;
● Ceased employment on 18 February 2011; and
● Was engaged under the Teys Bros (Naracoorte) Pty Ltd Production Departments AMIEU Collective Workplace Agreement 2008 (“the Agreement”).
The submissions
[4] The respondent’s primary position is that a period of absence from work while in receipt of workers’ compensation is an excluded period under s.22(2) of the Act. Section 22 relevantly provides as follows:
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or
(ii) a period of stand down underPart 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
...
(8) ...”
[5] As a secondary argument the respondent contends that even if this period is regarded as service in accordance with s.22 of the Act, it cannot be categorised as a period of “regular and systematic” employment for the purposes of calculating the period of employment of a casual employee in accordance with s.384(2)(a) of the Act. If the period of absence is discounted, the respondent contends that for one or both of the primary and secondary arguments the applicant has not met the mandatory minimum employment period of 26 weeks and is therefore not protected from unfair dismissal in accordance with s.382(a) of the Act.
[6] It is argued on behalf of the applicant that he was continuously employed and paid by the employer for the duration of his employment, which exceeded the minimum employment period. It was also contended that the applicant was employed on a permanent basis, but that in any event, his employment was regular and systematic with a reasonable expectation of continuing employment.
[7] It is convenient to deal initially with the respondent’s primary argument.
Is the period of absence on workers’ compensation is an excluded period?
[8] Mr Nissen, of counsel for the respondent, argues that the Act is concerned with the relationship between the employer and employee and in this context ‘unpaid leave’ ‘or ‘unpaid authorised absence’ means any situation when the employee is absent from work and is not being paid by the employer. The payments received by the applicant during this period were benefits provided under the WRC Act and paid by WorkCover SA, through its claims agent Employers Mutual Limited (EML). The fact that the employer made these payments to the applicant reflects only that the employer administered the payment of benefits on behalf of the scheme, and is of a different character than the payment of wages by the employer.
[9] Mr Nissen submitted that not all statutory workers’ compensation schemes adopt the approach of WorkCover SA and in some States the payments to the worker are made directly by the scheme. 2 It was argued that, if the conduit for the payment and not its source was the test as to whether leave is paid or not, this would lead to inconsistent outcomes depending on the provisions of the respective workers’ compensation schemes - an outcome that would not be contemplated by the Act.
[10] It was submitted that the applicant was not on paid leave or any form of leave as the term is defined in the Act, rather he was absent because he was not fit to work and was in receipt of a statutory insurance payment to compensate for the loss of wages.
[11] The respondent more generally relies on the terms of the Explanatory Memorandum to the Fair Work Bill 2008 in support of its argument that the absence of the worker should be regarded as unpaid. Paragraph 1512 of the Explanatory Memorandum is in the following terms:
“Paragraph 382(a) provides that a person must have completed a minimum employment period with his or her employer. A requirement that an employee serve a minimum period before having access to an unfair dismissal remedy enables an employer to have a period of time to assess the capacity and conduct of a new employee without being subject to an unfair dismissal claim if they dismiss the employee during this period.”
[12] It was submitted that if a period on workers’ compensation was counted toward the minimum employment period it would defeat the rationale of allowing the employer the specified period of 26 weeks in which it could assess the capacity and conduct of a new employee. By way of example, Mr Nissen referred to the situation where an employee suffered a compensable disability on the first day of employment which resulted in an absence for 6 months. It was submitted that such unintended consequences would not occur if ‘paid leave’ is limited to the normal categories of paid leave, which would usually be limited to a maximum period of three weeks in the first six months of employment (2 weeks annual leave and 1 week personal leave).
[13] Ms Nachiappan, of counsel for the applicant, contends that the payments received by the applicant during his period of absence due to injury were payments made by the employer and as such the applicant was not on unpaid leave or an unpaid authorised absence.
[14] It was submitted that, under the WRC Act, leave accrues during a period of absence on workers’ compensation, reinforcing the argument that such absences are to be treated as time worked.
[15] Ms Nachiappan referred to the decision of Commissioner Roe in Webster v Toni and Guy Port Melbourne. 3 In that matter, a period of absence from work during which the worker was in receipt of payments from the Transport Accident Commission (TAC) was held to be a period of unpaid leave or unpaid authorised absence, and therefore did not count toward the minimum employment period. Webster was said to be distinguished from the present matter on the basis that the payments received by Mr Webster were not made by the employer but came directly from the TAC and because the payments operated independently of the employment relationship.
[16] Ms Nachiapann’s submitted that the absence did not break the applicant’s continuity of service. 4 It was argued that neither the employer or employee indicated an intention to no longer offer or accept work, as the case may be, and cited the following passage from Shortland v The Smiths Snackfood Co Ltd5. This decision concerned an appeal, where the Tribunal at first instance held that the applicant, a casual employee, had not served the minimum employment period.
“[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”
[17] In reply, Mr Nissen submitted that s.22 of the Act operates independently of any State legislation that permits the accrual of service during a period of workers’ compensation including for the purpose of leave accruals. It was argued that such provisions are irrelevant to the calculation of service for the purposes of Part 3-2 of the Act and cannot subvert the jurisdiction of Fair Work Australia. He highlighted that the employer’s arguments did not assert that the applicant’s continuity of service was broken by the period of absence, and to this extent Ms Nachiappan’s arguments against the proposition that continuity of service was broken, were misdirected. Mr Nissen submitted that Shortland, above, supported the respondent’s argument that a period of continuous service could include periods that count as service and as well as periods that do not. 6
Consideration
[18] The issue for determination is whether the period of absence during which the applicant was in receipt of workers’ compensation payments is a period of unpaid leave or an unpaid authorised absence in accordance with s.22(2)(b) of the Act. If so, it is an excluded period, and s.22(3) is explicit that an excluded period does not count towards the length of the employee’s period of continuous service. Section 384(1) provides that the period of employment at a particular time is the period of continuous service at that time and therefore an excluded period does not count toward the period of employment.
[19] I respectfully adopt the approach to statutory interpretation set out in the decision of a Full Bench in JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia. 7 After canvassing relevant statutes and decisions, the Full Bench concluded:
“[29] Drawing these principles together, the task of statutory interpretation is concerned with ascertaining the intention of the legislature as manifested by the text of the legislation. Context (using that word in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means, one may discern the statute was intended to remedy) and the purpose or object underlying the legislation must always be considered. These must be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise. The text of a provision, read in context and having regard to the object and purpose of the provision, is always the surest guide. Moreover, the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. Resort to explanatory memoranda and other extrinsic material may only be had for the purposes stated in s.15AB(1)(a) and (b) of the Acts Interpretation Act 1901.
[30] It is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory interpretation. Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning. Section 15AB 8 does not permit recourse to explanatory memoranda or other extrinsic material for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable.”
[20] It is convenient to put to one side the issue of payment and look at the categorisation of the applicant’s absence. ‘Authorised absence’ and ‘leave’ are directed to different circumstances, otherwise only one type of absence would be specified in S.22(2) of the Act. I do not regard the applicant’s absence as a period of leave, which in my mind suggests an absence in circumstances where the employee has met the requirements of a workplace instrument, statute or common law employment contract that entitles the employee to be absent from the workplace.
[21] I consider that an authorised absence reflects an absence which does not arise from a legal entitlement, but rather is an absence approved, condoned or otherwise accepted at the discretion of the employer.
[22] In the present case, the applicant is absent because he is unfit to work. I have some doubt as to whether this circumstance falls within the definition of ‘leave’ or ‘authorised absence’ however as this matter was not addressed in the submissions of the parties I make no finding on this point and it is unnecessary that I do so given the conclusions I have reached. For present purposes I have assumed that the absence was an authorised absence.
[23] The next issue, which is the primary basis of the respondent’s objection, is whether the absence was ‘unpaid’ within the meaning of s.22 of the Act. I am unable to accept the respondent’s argument that there is a distinction between payments made by the employer on behalf of EML as agent for WorkCover SA, and payments made by the employer on its own behalf. At a superficial level the argument has some merit but with respect, leads to a more absurd outcome than that contemplated by Mr Nisssen. Such an approach would mean that employees of self-insured employers would be ‘paid’ and employees of employers who are insured through WorkCover would not be ‘paid’.
[24] The resolution of this issue lies in interpreting the concept of paid and unpaid absences in the context of the Act. The Act is concerned with workplace relations and matters pertaining to the employment relationship. The object of the Act commences with the words “The object of this Act is to provide a balanced framework for co-operative and productive workplace relations that promote .......”. I have concluded that whether the payments received by a worker constitute a paid absence from the workplace requires that there be sufficient connection between the payments and the employment relationship. In Webster, the payments received from the TAC were not dependent on the existence of an employment relationship, whereas in this case the applicant was in receipt of payments because he suffered a compensable disability. A compensable disability is defined in the WRC Act as follows:
“30—Compensability of disabilities
(1) Subject to this Act, a disability is compensable if it arises from employment.
(2) Subject to this section, a disability arises from employment if—
(a) in the case of a disability that is not a secondary disability or a disease—it arises out of or in the course of employment; or
(b) in the case of a disability that is a secondary disability or a disease—
(i) the disability arises out of employment; or
(ii) the disability arises in the course of employment and the employment contributed to the disability.
(3) A worker's employment includes—
(a) attendance at the worker's place of employment on a working day but before the day's work begins in order to prepare, or be ready, for work; and
(b) attendance at the worker's place of employment during an authorised break from work; and
(c) attendance at the worker's place of employment but after work ends for the day while the worker is preparing to leave, or in the process of leaving, the place; and
(d) attendance at an educational institution under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; and
(e) attendance at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to participate in a rehabilitation program or for the purposes of a rehabilitation and return to work plan, or to apply for, or receive, compensation for a compensable disability.
(4) However, a disability does not arise from employment if it arises out of, or in the course of, the worker's involvement in a social or sporting activity, except where the activity forms part of the worker's employment or is undertaken at the direction or request of the employer.
(5) A disability that arises out of, or in the course of, a journey arises from employment only if—
(a) the journey is undertaken in the course of carrying out duties of employment; or
(b) the journey is between—
(i) the worker's place of residence and place of employment; or
(ii) the worker's place of residence or place of employment and—
(A) an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; or
(B) a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a compensable disability,
and there is a real and substantial connection between the employment and the accident out of which the disability arises.
(6) However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (5)(b).
(7) The journey between places mentioned in subsection (5)(b) must be a journey by a reasonably direct route but may include an interruption or deviation if it is not, in the circumstances of the case, substantial, and does not materially increase the risk of injury to the worker.”
[25] In accordance with this definition, payment of workers’ compensation requires that the injury arises out of the employment relationship. Workers’ compensation payments made by a self-insured employer, an employer on behalf of the insurer, or directly by the insurer share the same quality that the payment arises from and is dependent upon the existence of an employment relationship.
[26] The respondent’s argument that its interpretation is supported by the terms of the Explanatory Memorandum is problematic in terms of the overall approach to the exercise of interpreting the terms of a statute as set out in JJ Richards. In addition, the respondent’s underlying argument ignores similar difficulties an employer could face in the assessment of an employee who suffers a work-related injury where the employee is not absent from work but allocated alternative duties, that is, duties other than those for which the employee was engaged. In such a case the employee would not be absent from work and the period of service performing the alternative duties would be taken into account for the purposes of the minimum employment period.
[27] I conclude that the applicant’s absence during which he was in receipt of workers’ compensation payments is not an excluded period under s.22(2) of the Act and counts toward his service.
Is the applicant excluded under s.384(2) of the Act?
[28] Pursuant to s.384(2)(a) of the Act, a period of service as a casual employee does not count toward the minimum employment period unless the employment as a casual was regular and systematic and the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis. There is no issue in relation to the second of these two factors, but the respondent argues that the during the absence on workers’ compensation the employment was not regular and systematic, it was in fact a period of no ‘employment’ at all and does not contribute to a casual employee’s period of employment. 9
[29] Mr Nissen referred to several decisions in support of his argument. Shortland v The Smiths Snackfood Company 10 was said to support the proposition that a given period of service of a casual employee can only be counted toward the period of employment if it meets the requirements of ss.384(2)(a)(i) and (ii) of the Act. This approach was said to be supported by obiter in Ponce v DJT Staff Management Services Pty Ltd T/As Daly’s Traffic.11
[30] Mr Nissen also referred to a decision of the Australian Industrial Relations Commission (AIRC) in Vidler v Brisbane City Council. 12 In that matter, the Commissioner Spencer held that a period of suspension from employment could not be used in determining whether the applicant was “a casual employee engaged for a short period” within the meaning of the Workplace Relations Act 1996 (Cth)(WRA) and therefore excluded from the unfair dismissal jurisdiction. The respondent acknowledges that the terminology in the WRA differs from that in the Act, however Mr Nissen contends that the word employment in s.384(2)(a(i) of the Act should be read as akin to ‘engaged’ under the WRA.
[31] Ms Nachiappan submitted that the only periods when work was not offered and accepted were those when the applicant was physically incapable of performing his duties. Many of the submissions on behalf of the applicant went to the pattern of work and arrangement of hours when the applicant performed work for the employer before and after his absence on workers’ compensation, and arguments that this work met the requirements of s.384(2)(a)(i) and (ii) of the Act.
[32] It was also argued that the applicant was in effect a permanent employee. In support of this contention, Ms Nachiappan submitted that the applicant served a 3-month probationary period during which he received a rate of $15.00 per hour. At the conclusion of the probationary period his wage rate was increased to $19.80 per hour. This was said to be inconsistent with the concept of casual employment.
[33] Ms Nachiappan submitted that the applicant was not advised that he was a casual employee and “... was always under the impression that it was a permanent position”. She stated that the applicant worked in accordance with a roster that was posted at least 7 days in advance and was only changed for minor alterations to commencing and/or finishing times. Further, the applicant applied for and was granted leave for a day’s absence. The application was made on an Employee Leave Application 13 and this was said to be further evidence of a permanent employment relationship.
[34] In reply the respondent confirmed that its submission “... was not that the applicant fails the regular and systematic test because of his hours of employment, rather, the applicant fails the regular and systematic test because of his absence of hours of employment.”
[35] On the applicant’s argument of permanent employment, the respondent submitted that this was the first time the applicant had raised a claim of permanent employment; that he was engaged as a casual in accordance with the Agreement; that the applicant worked in accordance with a roster for the administrative convenience of the employer and employee; and similarly, the requirement to complete a leave form was an administrative convenience for the employer. Mr Nissen refuted the applicant’s contention that employment on a probationary period implied permanent employment and submitted that a probationary period is a mechanism used for casual and permanent employees alike. 14
Consideration
[36] I have approached the respondent’s objection to the jurisdiction of the Tribunal based on s.384(2) of the Act by first considering whether the applicant was a casual or permanent employee to determine whether this section has any application. If it is determined that the applicant is a permanent employee, then s.384(2) of the Act is not applicable. If the applicant is held to be a casual employee, then the terms of ss.384(2)(a)(i) and (ii) will be considered.
[37] It has been suggested that the scheme of the Act concerning access of casuals to the unfair dismissal jurisdiction means that a determination of whether an employee is a casual employee or not, is no longer required. 15 Casuals are not excluded from the legislation and are not subject to a different minimum employment period than permanent employees. However, that is not the end of the matter. The employer’s secondary argument set out in paragraph [5] above is a convenient summary of this point. That is, if the applicant is a casual employee, the period of absence on workers’ compensation has to be assessed by reference to the tests in s.384(2)(a)(i) and (ii) and if the employer’s argument is accepted, then this period does not count toward the minimum employment period. Conversely, if the applicant is held to be a permanent employee then the minimum employment period is satisfied.
[38] Before turning to the relevant facts of the applicant’s employment, it is appropriate to set out the approach to determining whether a particular employment arrangement is that of a casual employee. In Cetin v Ripon Pty Ltd t/as Parkview Hotel, a Full Bench of the AIRC held that the term “casual employee” has no settled meaning and the true nature of the employment relationship is to be determined on the facts of each case. 16 While Cetin was decided under the WRA, it remains apposite. After considering relevant case law the Full Bench stated that:
“[59] In our view all the facts and circumstances bearing upon the nature of the engagement should be considered in determining the true character of the employment. Consistent with the approach of Moore J in Blue Line Cruises, the informality, uncertainty and irregularity of an engagement supports a conclusion that the employment has the characteristic of being casual. Conversely regular and systematic engagements with a reasonable expectation of continuing employment are usually not characteristic of casual employment.”
[39] The agreement of the parties and the terms of awards and agreements do not conclusively determine the character of employment for the purposes of the Act and nor is the payment of a casual loading in lieu of sick leave, annual leave and public holidays determinative of the relationship. 17 In Amalgamated Collieries of WA Ltd v True, the relationship of awards to the contract of employment was described as follows:
“But an award never deals with all the matters which affect the relations of any particular employer and any particular employee. The creation of the relation of employer and employee depends upon an agreement between them and not upon any award. Thus, the existence of the obligations under an award in relation to a particular employer and employee always depends on the existence of a contract between them. So, also, there are terms of their relationship which do not depend upon any award. For example, the employee must always obey the lawful orders of his employer, but awards do not commonly include a term to that effect....” 18
The employment arrangement
[40] The days worked by the applicant in the course of his employment are not in contention. It is convenient to divide the period of employment into three periods - the pre-injury period: 10 weeks from 1 July to 3 September 2010; the period of absence due to injury: 11 weeks from 7 September to 21 November 2010; and the post-injury period: 13 weeks from 22 November 2010 to 18 February 2011. The data provided by the parties is expressed in terms of the dates worked in a week ending on a Saturday.
Week Ending (Saturday) | Days worked | Comments |
3 July 2010 | Thurs, Fri | |
10 July | Mon - Fri | |
17 July | Mon - Fri | |
24 July | none | Annual Close Down |
31 July | none | Annual Close Down |
7 August | Fri | |
14 August | Tues - Thurs | |
21 August | Tues - Fri | |
28 August | Mon, Thurs- Fri | Injured Monday 23 August. Prescribed Med. Certificate (PMC) in respect to Tues and Wed. |
4 September | Wed - Fri | |
11 September | None | Absence from work for operation relating to injury and recovery |
18 September | None | “ |
25 September | None | “ |
2 October | None | “ |
9 October | None | “ |
16 October | None | “ |
23 October | None | “ |
30 October | None | “ |
6 November | None | “ |
13 November | None | “ |
20 November | None | “ |
27 November | Mon - Thurs | |
4 December | Mon - Fri | |
11 December | Tues - Fri | PMC for 6 September |
18 December | Mon - Fri | |
25 December | Mon - Fri | |
1 January 2011 | None | |
8 January | Wed - Fri | |
15 January | Mon - Fri | |
22 January | Tues - Fri | |
29 January | Tues - Thurs | |
5 February | Mon - Fri | |
12 February | Mon - Fri | |
19 February | Tues - Fri | Monday was a day applied for and granted as ‘leave’ for ‘personal reasons’. 18 February was last day of employment. |
[41] The hours worked on any day in the pre-injury period have not been provided, although on his return to work after his operation the applicant was on restricted duties with a maximum of 4 hours per day. This was subsequently increased to 8 hours per day from 2 February 2011. This information suggests that the applicant had been working 8 hours per day prior to his injury and this is supported by the respondent’s submission that the usual work day is eight (8) hours. 19
[42] The respondent has not directly challenged the contention that the applicant’s hours were regular and systematic in the pre and post-injury periods. I find that these hours are not reflective of an informal or ad hoc arrangement, although clearly there is some variation in the number of days and the particular days of the week on which work was performed. Variation in hours of this kind is not inconsistent with a determination of regular and systematic employment. 20 Of the 20 weeks before and after the absence arising from the applicant’s operation, (excluding the first week of employment and the period of annual shut down) 18 weeks involved working 3 or more days per week. I am satisfied that the arrangement of working hours in the pre and post-injury periods was regular and systematic.
[43] Limited information was provided about the manner in which the applicant’s hours were determined and the arrangements that would generally apply for rostered shifts unable to be worked. However, contrary to the respondent’s submission, the application for leave in respect of 14 February 2011 suggests something other than ‘administrative convenience’. It is an application for ‘leave’ which requires that the number of days sought and the reason for the leave be specified. The application is subject to two levels of approval and in the applicant’s case, was signed off by his supervisor, day shift manager and the General Manager Operations. The leave application is required to be submitted two weeks prior to the date of commencement of leave unless this is not practicable. The application was made on 9 February when the applicant would have been in receipt of his roster for the following week and I assume the day of the leave was otherwise a rostered shift.
[44] In summary, the applicant’s hours were regular and systematic, worked in accordance with a roster posted 7 days in advance and for which leave had to be sought and approved in the event that a rostered day was not to be worked. He served an initial 3 month probationary period and more generally the applicant had a reasonable expectation of continuing employment. 21 These are the hallmarks of a permanent, not casual employment relationship.
The Agreement
[45] The Agreement was made under the WRA and is a collective workplace agreement that excludes the operation of the Award that would otherwise apply. 22 It sheds more darkness than light on the category of employment of any employee who works under it, as the summary of certain clauses below indicates.
[46] The Agreement defines a casual employee as an employee engaged as such and paid on an hourly basis and whose employment terminates at the conclusion of each period of engagement without notice. 23 Part time and full time employees are not defined. The Agreement contains a stand down provision24 and a provision providing for the suspension of employees for a period not exceeding 10 consecutive working days or shifts in certain circumstances.25 These clauses are not limited to permanent employees, as clause 2.1.11.1 makes clear:
“2.1.11.1 Engagement of Casual Employees
Subject to the rights of Teys Bros to stand down or suspend employees pursuant to sub-clause 2.1.3 of this Agreement, casual employees shall be engaged by the hour with a minimum of two (2) hour's work provided per engagement or payment in lieu thereof. Employment and engagement terminates at the end of each casual engagement.”
[47] The probationary clause in the Agreement is as follows:
“2.1.5 Probationary and Qualifying Period
Employees may be engaged for an initial probationary period of up to and including ninety (90) working days or shifts, being days or shifts that the Employee actually works which can and will include any days or shifts upon which the employee was engaged as a casual employee. Time spent as a probationary Employee will count as time worked for the purposes of accruing any entitlement under this Agreement and time worked during the probationary period as a casual employee shall count as time worked, only for the purposes of calculating entitlements to long service leave and parental leave.
During the probationary period, an Employee’s employment may be terminated instantaneously by either Teys Bros or the Employee giving notice, such notice being effective at the end of any day or shift.
If Teys Bros gives notice during a day or shift, then, irrespective of whether Teys Bros requires the Employee to finish working rostered hours for that day or shift, the Employee is entitled to be paid for the whole of that rostered day or shift.
...”
[48] Clause 3.1 Classifications and Minimum Wage Rates commences:
“Subject to the employer’s rights under sub-clauses 2.1.2.2 and 2.1.3 of this Agreement, the following shall represent the minimum classification rates of pay for the various categories of employees as from the first period ...” (emphasis added).
[49] A single rate of pay is then specified for each of the nine grades set out in this clause. Each Grade contains a description of the work performed, except Grade 5 which states that it applies “during probation”. For present purposes it is relevant that Clause 3.1 specifies the minimum wage rate for a probationary employee to be $15.00 per hour and this was the rate of pay received by the applicant.
[50] The “employer’s rights under sub-clauses 2.1.2.2 and 2.1.3” as referred to in clause 3.1 set out above, refers to the employer’s right to only pay employees when attending and performing work and the right to stand down and suspend employees.
Conclusion
[51] I consider that the 3-month probationary period served by the applicant is significant in considering the nature of the employment relationship as is the fact that he received the rate applicable to a permanent employee during this period. The concept of probation leads to a common expectation that subject to satisfactory employee performance and business operational requirements, the employment will continue beyond the probationary period. This is not consistent with an informal or ad hoc arrangement.
[52] I agree with the respondent that a roster is not determinative of the employment relationship and that there is an element of administrative convenience for the parties in adopting such a practice. However, the manner in which a roster is enforced is a separate matter that goes to the expectations of the parties in relation to the requirement to attend work and the notice of non-attendance required.The practice of formally applying for leave for days which are otherwise rostered working daysis significant in this regard. Similarly, the regularity of work and whether there is a pattern or system of work evident in the periods over which work is performed is a relevant matter and in this case both regularity and system are present in the hours worked by the applicant.
[53] The terms of the Agreement that apply to casuals are replete with ambiguity and contradiction and for the most part imply conditions of employment more consistent with a permanent employment arrangement. For this reason the terms of the Agreement have been discounted in considering the nature of the employment relationship.
[54] Having regard to the features of the employment relationship discussed above, I have concluded that the applicant’s employment was not casual in nature and that he was a permanent employee. As such, it is not necessary to address the respondent’s secondary argument concerning the application of s.384(2)(a)(i) and (ii) of the Act to the applicant’s period of absence on workers’ compensation payments.
[55] I am satisfied that the period of absence on workers’ compensation is not an “excluded period” in accordance with ss.22(1) and (2) of the Act. As such, the applicant has completed a period of employment in excess of the minimum employment period and satisfies the requirement of s.382 (a) of the Act. I conclude that the applicant is protected from unfair dismissal in accordance with s.382 of the Act.
[56] The parties will be shortly advised of a further directions conference relating to the application for an unfair dismissal remedy.
DEPUTY PRESIDENT
1 The following documents were filed: Submissions on Behalf of the Respondent, 14 June 2011; Submissions of the applicant, 29 June 2011; Submissions in Reply on Behalf of the Respondent, 6 July 2011.
2 Comcare and WorkCover Queensland were cited as examples.
3 [2010] FWA 4540
4 Paragraphs 24, 25 and 26 of the applicant’s written submissions. Section 22(3) of the Act is explicit that an excluded period does not break an employee’s continuous service.
5 [2010] FWAFB 5709
6 At paragraph [6]
7 [2010] FWAFB 9963
8 This a reference to s.15AB of the Acts Interpretation Act 1901(Cth), which deals with the use of extrinsic material in the interpretation of an act.
9 I understand that the periods either side of the absence on workers compensation are not challenged as to regularity etc.
10 [2010] FWAFB 5709
11 [2010] FWA 2078
12 [2007] AIRC 492
13 Annexure A to the Submissions for the Applicant.
14 Paragraph 23 Submissions in Reply on Behalf of the Respondent
15 Obiter in Ponce at PN [56]
16 PR938639, 25.9.2003, at paragraph [57].
17 Cetin, supra, at paragraphs [61], [62]
18 59 CLR 417 per Latham CJ.
19 At paragraph 4
20 Ponce, supra at paragraph [66]
21 See Reed v Blue Line Cruises Limited (1996) 73 IR 420 at 425
22 Clause 1.6
23 Clause 1.9 Definitions
24 Clause 2.1.3.1
25 Clause 2.1.3.2
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