MUHANDIRAMGE v Climate Technologies Pty Ltd

[2015] FCCA 1636

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUHANDIRAMGE v CLIMATE TECHNOLOGIES PTY LTD [2015] FCCA 1636

Catchwords:
INDUSTRIAL LAW – Small Claims List – claim for redundancy pay – ex tempore ruling – construction of relevant Australian Workplace Agreement – applicant successful.

Legislation: 
Workplace Relations Act 1996

Fair Work Act 2009

Labour Law by Breen Creighton & Andrew Stewart, Fifth Edition, The Federation Press

Applicant: LILANI MUHANDIRAMGE

Respondent: CLIMATE TECHNOLOGIES PTY LTD

File Number: MLG 2603 of 2014

Judgment of: Judge Burchardt

Hearing date: 3 June 2015

Date of Last Submission: 3 June 2015

Delivered at: Melbourne

Delivered on: 3 June 2015

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Gleeson (by leave of the Court)

ORDERS

1. The Respondent pay the Applicant $11,323.31 less any applicable tax.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 2603 of 2014

LILANI MUHANDIRAMGE

Applicant

And

CLIMATE TECHNOLOGIES PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant seeks payment of a redundancy payment which she says the respondent was obliged to pay to her. It is to the credit of the parties that for these purposes it is accepted that the methodology that the applicant adopted in her calculations and the amounts of money that she asserts would, if she is entitled to a redundancy payment, be correct.  I give great credit to Mr Gleeson for the down to earth commonsense way in which he dealt with this aspect of the matter.  It is apparent that the applicant did not work a minimum of 18 hours in every week that she worked but he accepted that 18 hours was about right as an average over the period of her employment. 

2. The applicant’s employment lasted from 2006 to 2014 and at the time of its commencement or close thereto, the parties entered into an Australian Workplace Agreement (“AWA”) which Mr Gleeson tells me and I fully accept was duly lodged with the requisite authorities thereafter.  Given the way the case is put and defended, it is important to pay attention to the terms of that agreement.  The agreement is between the respondent and the applicant.  It takes effect from 10 April 2006 with an expiry date of 31 January 2011, unless otherwise terminated, varied or extended beforehand by mutual agreement of the parties and approval by the Employment Advocate.  Mr Gleeson assures me and I accept that no such extension or termination of the agreement has taken place. 

3. The duties of the employee are set out at clause 4.1 and it reads:

   “The employee will initially be employed as a Customer Service Officer (casual) in the Victorian operations of Climate Technologies Pty Ltd and will report to the Service Administrator.  Depending on the requirements of the business, the title of the position and the position to which it reports may be varied from time to time.”

4. But there is no suggestion in the materials put before me that any such form of variation of the position ever took place.  The employment agreement has a clause relating to casual employees.  Relevantly, that prescribes at clause 5.4:

   “There is no minimum period of employment for casuals (other than an hour).  There is also no maximum period for which an employee can be employed on a casual basis.  A person engaged as a casual employee may have their employment terminated at any time by either party giving the other party one hour’s notice.”

5. I note that termination of employment excludes casuals, save for the one hour period I have already referred to, and I further note that at clause 7 under the clause heading, Application of Award, it reads:

   “This Agreement shall operate to the exclusion of and shall supersede all Federal and State Awards or variations and all other industrial agreements which would otherwise operate to regulate the conditions of employment covered by this Agreement.”

6. The other clause that is of immediate present relevance is the Redundancy clause 18, which reads:

   “Redundancy payments should they be necessary will be made in accordance with Climate Technologies’ policy.  The employer shall not be obliged to make a redundancy payment if the employer obtains suitable alternative employment for the employee and the employee unreasonably rejects the offer of employment.”

7. Now, it should be noted that under clause 5.5 it reads:

   “Casual employees do not receive benefits such as annual leave, personal leave, payment for public holidays not worked and jury service as consideration for this is included in their rate of pay.”

8. So at least in large part this case turns on what one makes of these clauses read properly and as a whole.  It is, however, important to note that I have also been provided with a copy of what the applicant says is the redundancy policy referred to in the AWA.  This document, which was, I think, supposed to be filed with the application and is headed Attachment 5, is said by the applicant to be a copy of the redundancy pay procedure document taken from the respondent’s website.  I notice it is authorised by Andrew M. Gleeson, who I take it is Mr Gleeson before me today.  Its date appears to be 1 March 2002 but it would therefore seem to be, more probably than otherwise, the policy extant in 2006. 

9. Under the heading “PURPOSE” there is recorded:

   “This procedure defines the redundancy pay applicable if an employee’s position the company becomes redundant.”

10. Then there is the heading “SCOPE” and the words:

    “This procedure applies to all employees at CLIMATE TECHNOLOGIES and relates to redundancy entitlements and sets out the procedure to be followed for fortnightly and monthly paid employees of CLIMATE TECHNOLOGIES.”

11. That clause, it should be noted, is perhaps slightly internally inconsistent because it says it applies to all employees but then appears arguably to retract it or reduce it, as it were, to fortnightly and monthly paid employees.  It is, however, a matter, once again, of construing the document as it stands. 

12. The next document to which it’s appropriate to refer is the letter sent to the applicant at the time that her employment came to an end and that was filed with the application.  The document is a letter to the applicant from Mr Gleeson dated 9 May 2014.  The relevant extracts seem to me to be these.  In part the letter states:

    “Unfortunately, one result of the review is that we have decided your position is not required in our long term planning for the business.  We have considered other employment opportunities which might exist for you within our operations but regret to advise that we have nothing suitable.  Consequently we have to advise that your employment will terminate today, 9^th May 2014.”

13. Mr Gleeson has told the court today that the consideration of other employment was merely part of the company’s general endeavours to do the best it can for employees who may be retrenched and I fully accept that that is so, but I do note that the language of the letter includes a decision that the position that the applicant filled was “not required in our long term planning for the business.”  Given that she had been employed by 2014 for some eight or more years, plainly while her employment status was always casual, it had achieved a measure of - how are we going to put it - length of duration not ordinarily, perhaps associated with casual employment. 

14. The other instrument to be construed is the 2009 Climate Technologies Pty Ltd Staff Employee Collective Agreement.  My own researches during the break show that this document was indeed registered with the Commission.  Looking at that document, which came in in 2009, its Application is expressed to be:

    “This agreement will apply to employees employed in a classification within Attachment 1 of this agreement.”

15. And the parties to the agreement are said to be the respondent and,

    
    

    I quote:

    “All employees of Climate Technologies Pty Ltd subject to the application of this agreement.”

16. The important aspect of that is that Attachment 1 to the agreement, which I may say is consistent with Attachment 2, which sets out a series of employment classifications and the classification regime in clause 19 of the agreement, shows a number of positions, none of which exactly reflect the position to which the applicant was appointed, which was that, if I can turn back to it for a moment, of Customer Service Officer.  There are some jobs that incorporate some of those words.  There is a Clerical Administration Officer, there is a Customer Call Centre Officer but there is no phraseology in Attachment 1 to the agreement that in fact expressly covers the terminology used in the applicant’s AWA. 

17. So those are the documents the court has before it.  As I say, it is accepted for present purposes that the calculations made by the applicant of themselves are not controversial. 

18. Turning to what the state of the law is, and this was part of the submission adopted by Mr Gleeson, the AWA had, as it were, a primacy of position under the Workplace Relations Act 1996

    
    

    (“WR Act”).  As best I recall it, Division 6 Part 8 of the WR Act effectively meant that an extant operative AWA superseded everything else.  As I construe the 2009 Staff Employee Collective Agreement,

    
    

    it did not, according to its terms, apply to the applicant because her job position and job classification is simply not referred to in it. 

19. Even if I was wrong as to that, however, in my view the primary submission advanced by Mr Gleeson is correct, namely that the AWA applied in any event.  It had not reached its nominal date of expiry at the time the agreement came in and without getting into the full horror of the transitional provisions in the Fair Work Act 2009

    
    

    (“the FW Act”), I would simply quote this extract from the work Labour Law by Breen Creighton & Andrew Stewart, the Fifth Edition, The Federation Press, at paragraph 12.15 the learned authors say:

    “As a result, from 28 March 2008, no new AWAs could be made between employers and employees covered by the federal system.  However, the Transition Act permitted AWAs made before 28 March 2008 to continue in operation until they reached their nominal expiry date (which could be up to five years from the date of the making the AWA), and indeed beyond that, until such time as they were terminated or replaced by another agreement.”

20. And the footnote says:

    “See Schedule 7A to the WR Act 1996 (as amended by the Transition Act).”

21. So, in effect, it is really, in my view, the original 2006 agreement with which we are concerned.  The arguments put by the applicant have been essentially reduced to writing in a document she has handed to the court, which I have not marked but will cause to be marked for identification as MFI-1.  Essentially she points to the AWA, she asserts that clause 5.3 does not contain a specific reference to redundancy payments not being applicable to casuals, she refers to the primacy of position, so to speak, of the AWA and she also refers to the fact that the redundancy policy does not mention casual employees are excluded.  There is also some attribution of remarks to Mr Gleeson to which I pay no attention because they are simply argumentative. 

22. Mr Gleeson pointed to the fact that the employment agreement, the AWA, when it refers to things that casuals do not get, it only does so in a general way.  It does not purport to be an all-inclusive list and I accept that submission.  The phrase used in clause 5.5 is simply “such as.”  So far as clause 18 is concerned, he says that the policy submitted to the court by the applicant is in fact more closely reflected in the Climate Technologies’ Collective Agreement, which I fully accept expressly excludes casuals from redundancy payments.  He also submits, and he is right again, that the original Termination, Change and Redundancy case made it clear that casual employment was excluded in a general way from redundancy payments, as a matter of analysis and as a matter of what the decision originally did. 

23. This is an unusual case, as I said, but if one looks at the AWA, in the ultimate it does, I think, seem clear that there is no express exclusion of casuals from redundancy pay.  The binding clause which would operate irrespective of whatever might have been in the termination change in redundancy case is that redundancy will be paid in accordance with Climate Technologies’ policy.  Climate Technologies’ policy says it applies to all employees and although there is a reference to fortnightly paid employees and monthly paid employees, in my view that does not override the generality of the words “all employees.”

24. Construing this unusual set of contractual arrangements therefore as best I can, it seems to me that the applicant has made out her case that on the AWA, incorporating, as it expressly did, the Climate Technologies’ redundancy pay procedure, she is entitled to her claim.  Accordingly, there will be an order on the claim in the amount sought.  I think, however, what I should order is that there should be an order on the claim for the payment to the applicant of $11,323.31 less any applicable tax otherwise that will get terribly complicated for the employer.  They have an obligation at law to take out tax and you get into hideous arguments about whether you have got to pay the net figure or the gross figure so that will be the order of the court.  So I order on the claim that respondent pay the applicant $11,323.31 less any applicable tax.  There is no need for me to make any orders as to time, the Court’s Rules take care of that.  It is a most unusual case. 

    
    

    I appreciate the very helpful submissions that all parties’ have made. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  16 June 2015