Newcombe v Amrou Metawa Pty Ltd

[2016] FCCA 89

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWCOMBE v AMROU METAWA PTY LTD [2016] FCCA 89

Catchwords:
INDUSTRIAL LAW – Small claims – whether the Applicant was a part-time employee or a casual – classification of employment.

Legislation:

Fair Work Act 2009, s.570

Federal Circuit Court of Australia Act 1999, s.76
Health Professionals and Support Services Award 2010 [MA000027]

Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589
Howe v Hutt Street Private Hospital (1987) 25 IR 356
Workplace Ombudsman v Saya Cleaning Pty Ltd & Anor (No.2) [2009] FMCA 154

Applicant: KYLIE NATASHA NEWCOMBE

Respondent: AMROU METAWA PTY LTD

File Number: SYG 2222 of 2015

Judgment of: Judge Altobelli

Hearing date: 26 November 2015

Date of Last Submission: 26 November 2015

Delivered at: Wollongong

Delivered on: 22 January 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Moray & Agnew Lawyers

ORDERS

THE COURT DECLARES THAT:

1. The Respondent contravened clause 10.4 of the Health Professionals and Support Services Award 2010 [MA000027] by failing to pay the Applicant for work performed as a casual employee.

THE COURT ORDERS THAT:

1. Pursuant to s.545 of the Fair Work Act 2009 (Cth), the Respondent pay the Applicant within 28 days a sum calculated as follows:

   ($22.98-$18.00) x total number of hours worked, less $821.34 already paid

2. Pursuant to s.76 of the Federal Circuit Court of Australia Act 1999 (Cth), the Respondent pay the Applicant within 28 days interest incurred on the amount stipulated in Order 2 above, calculated in accordance with the rate applied by the Supreme Court of NSW, with such amount to be calculated as at the date of termination of employment until the date of these Orders.

3. Leave be granted to the parties to relist the matter on 7 days’ notice if the parties are unable to agree on the total number of hours worked for the purpose of calculating the sum to be paid in Order 2 above.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2222 of 2015

KYLIE NATASHA NEWCOMBE

Applicant

And

AMROU METAWA PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain the Orders the Court has made in relation to the Applicant’s claim under the Fair Work Act 2009 (hereafter referred to as ‘the Act’) for payment of wages which she says she is entitled to pursuant to the Health Professionals and Support Services Award 2010. Two main issues arise for determination:

   a)Whether the Applicant was employed as a part-time employee, or as a casual;

   b)Whether the Applicant was classified as a Level 1 Support Services Employee, or as a Level 3 Support Services Employee.

2. The Applicant, who describes herself as a medical receptionist, contends that she was a casual Level 3. The Respondent, who is a doctor specialising in obstetrics and gynaecology, contends that the Applicant is a part-time Level 1.

Background

1. The claim was filed as a Small Claim on 11 August 2015. The Applicant claims that she worked as a casual medical receptionist for the Respondent between 18 July 2014 and 11March 2015, on average two to four days weekly at an hourly rate of $18.00 per hour. She contends, however, that she was not paid at what she submits was the correct hourly rate of $24.26 per hour, and was thus underpaid by at least $4,600, of which $800 has been paid.  She thus seeks an order for payment of $3,800, together with an order reimbursing her for the filing fee she has paid ($210) and interest to the date of judgment.

2. The Respondent opposes all Order sought and seeks dismissal of the claim. He contends that the Applicant was engaged on a part-time basis as a Level 1, and thus paid all of her entitlements. He also seeks costs.

The evidence

1. The Applicant relied on the following evidence:

   ·Application – Fair Work Division, filed 11 August 2015;

   ·Form 5 – Small claim under the Fair Work Act 2009, filed 11 August 2015; and

   ·Outline of submissions, filed 9 November 2015.

2. The Respondent relied on the following evidence:

   ·Response, filed 23 September 2015;

   ·Affidavit of Dr Amrou Metawa, affirmed 20 November 2015; and

   ·Outline of submissions, filed 25 November 2015.

The applicable law

1. This case involves determining the facts and then applying various provisions of the Health Professionals and Support Services Award 2010 [MA000027] (hereafter referred to as ‘the Award’) to those facts. Where relevant, the law will be set out below.

Relevant findings of fact

1. When the Applicant was employed by the Respondent as a result of an interview held on 14 July 2014, there was no explicit representation or agreement about whether she was employed on a casual or part-time basis, and at what classification level. Indeed, there was no agreement in writing at all. With respect to both the Applicant and the Respondent, what they now say they intended at that time is irrelevant. The focus needs to turn to what actually happened after employment commenced as reflecting their intention at the time of employment. The fact that the Applicant was, in effect, introduced to the Respondent through Mission Australia, who then in effect subsidised her pay through some form of government grant scheme, is irrelevant to the issues before the Court. Any contractual relationship that existed between Mission Australia and the Respondent throws no light on whether the Applicant was engaged part-time or casual, or at what level she was to be paid.

2. The actual dates and times when the Applicant worked in the Respondent’s practice was advised principally by SMS messages, sometimes at short notice. For example, the evidence establishes that on 22 February 2015 at 8:56pm, the Respondent asked the Applicant to work the next day, and she did. About 12 hours’ notice was given to the Applicant in this regard. On 13 August 2014 at 9:15am, the Applicant was asked to work at 2:00pm that day, and she did so. On 28 October 2014 at 3:36pm, the Applicant was asked to work at 9:00am the next day and she did so.

3. The Applicant worked mostly on Wednesdays, Thursdays and Fridays, but did work on Monday three times, and on Tuesday seven times.

4. The Applicant mostly commenced work at 9:00am, but sometimes commenced at 2:00pm, and had also started work at 1:00pm, 11:30am and 9:30am.

5. There is much greater diversity in the times when the Applicant ceased work. Mostly it was at 5:00pm, but sometimes it was 6:00pm, 6:30pm, 5:45pm, 5:15pm, 2:45pm and 6:30pm.

6. The Applicant’s evidence was that she was available to work for the Respondent, between Monday and Friday. She was alone at the practice, for the most part, on Tuesdays and Wednesdays.  She attended to the phone and to patients. She was the public face of the Respondent’s practice. She was one of the employees who covered the whole week. She agreed that she worked at least two days each week, Thursdays and Fridays, but was available to work at other times, was offered work at other times, and in fact worked at those other times. She agreed that she was not obliged to work if asked to. She was paid on a fortnightly basis. The amount of her pay varied according to hours worked. The Applicant was never paid a casual loading. The Respondent did pay to the Applicant annual leave in the sum of $821.34 – but after she ceased work, and after the intervention of the Fair Work Ombudsman’s Office.

7. The Applicant’s evidence was that she had three months previous experience as a receptionist at a business known as GW Maintenance, but this was unpaid work.  In her CV, this is recorded as book keeper.

Classification issue

1. It was common ground that the relevant award was the Health Professionals and Support Services Award 2010 [MA000027]. Schedule B sets out the classification definitions.  Level 1 is described at B.1.1 of the Award in the following terms:

   An employee with less than three months work experience in the industry and who performs basic duties.

   An employee at this level:

   ·   works within established routines, methods and procedures;

   ·   has minimal responsibility, accountability or discretion;

   ·   works under direct or routine supervision, either individually or in a team; and

   ·   is not required to have previous experience or training.

   Indicative roles at this level are:

General and administrative services	Food services	Technical and clinical
Assistant gardener Car park attendant Cleaner General clerk Hospital orderly Incinerator operator Laundry hand Seamsperson	Food and domestic services assistant	Animal house attendant CSSD attendant Darkroom processor Dental assistant (unqualified) Laboratory assistant Medical imaging support Orthotic technician Recording attendant (including EEG & ECG) Social work/Welfare aid Theatre attendant

1. Level 3 is described at B.1.3 as follows:

   An employee, other than an administrative/clerical employee, at this level:

   ·   is capable of prioritising work within established routines, methods and procedures;

   ·   is responsible for work performed with a medium level of accountability or discretion;

   ·   works under limited supervision, either individually or in a team;

   ·   possesses sound communication and/or arithmetic skills; and

   ·   requires specific on-the-job training and/or relevant skills training or experience.

   An administrative/clerical employee at this level undertakes a range of basic clerical functions within established routines, methods and procedures.

   Indicative roles performed at this level are:

General and administrative services	Food services	Technical and clinical
Driver (less than 3 tonne) who is required to hold a St John Ambulance first aid certificate. General clerk/Typist (second and subsequent years of service) Receptionist	Food monitor (an employee whose primary function is to liaise with patients and staff to obtain appropriate meal requirements of patients, and to tally and collate the overall results).	Instrument technician Laboratory assistant Personal care worker grade 2 Theatre technician

1. The Applicant was a Level 1 employee at the time she commenced with the Respondent. On her own evidence, she did not have more than three months “work experience in the industry”. The reference to industry in B.1.1 can only be in reference to the “health industry”, as defined in 3.1 of the Award.

2. Did the Applicant progress to a Level 3 at some time? She contends, at last implicitly, that she did, but does not articulate when this occurred.  The evidence does not enable the Court to make a finding in this regard.  In any event, she could not have progressed beyond Level 1 until at least three months, due to the reference in B.1.1 to “three months’ work experience”. When one has regard to B.1.2, the description of a Level 2, the impression formed from the evidence (without making findings) is that she might have progressed to this classification.  In any event, clause 13 of the Award states:

   All employees covered by this award must be classified according to the structure and definitions set out in Schedule B–Classification Definitions. Employers must advise their employees in writing of their classification upon commencement and of any subsequent changes to their classification.

3. There is no evidence in this case about notification in writing of change of classification, and none can be inferred. Moreover, clause 14.1 states:

   14.1 Progression through pay points

   Progression for all classifications for which there is more than one pay point will be by annual movement to the next pay point having regard to the acquisition and use of skills, or in the case of a part-time or casual employee, 1824 hours of similar experience.

4. This also suggests that progression through classifications occurs annually.

5. Having regard to all the evidence, therefore, the relevant classification for the Applicant is of a Level 1 employee.

Part-time or casual

1. Clause 10.3 of the Award defines part-time employment:

   10.3 Part-time employment

   (a) A part-time employee is an employee who is engaged to work less than the full-time hours of an average of 38 hours per week and who has reasonably predictable hours of work.

   (b) Before commencing employment, the employer and employee will agree in writing on a regular pattern of work including the number of hours to be worked each week, the days of the week the employee will work and the starting and finishing times each day.

   (c) The terms of the agreement may be varied by agreement and recorded in writing.

   (d) The terms of this award will apply on a pro rata basis to part-time employees on the basis that the ordinary weekly hours for full-time employees are 38.

2. Clause 10.4 defines casual employment:

   10.4 Casual employment

   (a) A casual employee is an employee engaged as such on an hourly basis, other than as a part-time, full-time or fixed-term employee, to work up to and including 38 ordinary hours per week.

   (b) A casual employee will be paid per hour calculated at the rate of 1/38th of the weekly rate appropriate to the employee’s classification. In addition, a loading of 25% of that rate will be paid instead of the paid leave entitlements of full-time employees.

   (c) The minimum period of engagement of a casual employee is three hours with the exception of cleaners employed in private medical practices who will be engaged for a minimum of two hours.

3. It is common ground that 10.3(b) was not satisfied, i.e. there was no agreement in writing between the Applicant and respondent about “a regular pattern of work”. As previously stated, any agreement between the Respondent and Mission Australia is irrelevant in this regard. This is one factor that points towards the Applicant’s employment not being part-time. A key point of difference between clauses 10.3 and 10.4 is that the former contemplates a written agreement, the latter does not.

4. The Respondent contends that the Applicant was engaged for “reasonably predictable hours of work”. On the evidence before the Court, that has not been established. All that was reasonably predictable was that the Applicant worked most Wednesdays, Thursdays and Fridays and started at 9:00am. She could not reasonably predict that she would work on a Monday or Tuesday, or that she would start after 9:00am.  Moreover, she certainly could not reasonably predict what time she would finish work. From a subjective perspective, thereafter, the hours were not reasonably predictable for the Applicant.

5. For the hours to be reasonably predictable on an objective basis, one would need to turn to the provisions of clause 10.3. The absence of an agreement has already been noted, but could it be said that, objectively viewed, the relationship between the Applicant and Respondent was, in substance, one of part-time employment? As a minimum, the Court would expect meaningful compliance with clause 10.3 and, in this regard, particularly 10.3(d), which entitled the Applicant to the benefit of the terms of the Award for full-time employees, but on a pro-rata basis.  Some of the implications of this include entitlement to overtime (clause 28), annual leave (clause 31) and public holidays (clause 32).

6. If, as the Respondent contends, the Applicant’s ordinary hours of work ended at 5:00pm, did she receive the overtime she was entitled to pursuant to clause 28.1 on 26 February 2015 when she worked until 6:00pm, or 30 January 2015 when she worked until 6:30pm, or on 31 January 2015 when she worked until 5:45pm, just to give a few examples? The evidence indicates that the answer is clearly no. She was paid at the same hourly rate.

7. In relation to annual leave, the Respondent’s own evidence concedes that it was not until 14 April 2015, over a month after the Applicant ceased working for him, and only after the intervention of the Fair Work Ombudsman’s office, that he agreed to pay annual leave and loading. The only reasonable inference that can be drawn from the evidence is that the Respondent did not believe the Applicant was entitled to annual leave as at the date she left his employment.

8. Both of these matters make it impossible for the Court to objectively view the relationship between the parties to this case as employment on a part-time basis.

9. On behalf of the Respondent, it was contended that the Applicant could not be a casual because she was not, pursuant to clause 10.4(a) of the Award, “engaged as such on an hourly basis …”. The reference in submissions to Howe v Hutt Street Private Hospital (1987) 25 IR 356 does not assist the Respondent in a case like this where, the Court finds, a plain reading of clause 10.3 of the Award excludes any possibility that the Applicant is a part-time employee. Moreover, it is not possible in this case to discern any joint understanding between the parties as to precisely how the Applicant was being employed.

10. The Respondent also referred to and relied upon the decision of the Full Court of the Federal Court of Australia in Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589. It is important to set out the actual submissions made on behalf of the Respondent at [22] of the Outline of Submissions filed on 25 November 2015:

    Additionally, the case of Hamzy v Tricon International Restaurants t/as KFC (‘Hamzy’)10 considered the meaning of casual employment and held:

    “…an employee who works only on demand by the employer…

    The essence of casualness is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work.”

11. The emphasis appears to be, in the Respondent’s case, that in the present case there could not be casual employment because there was a firm advance commitment as to days or hours the employee will work.  Thus, on the facts of the present case, it must be contended that the pattern of employment, i.e. the history of the same, is inconsistent with casual employment.

12. There are two major difficulties with this submission. Firstly, this is what the Full Court in fact said at [38] of the joint judgment:

    38 In our opinion there is no material difference between the description “employees engaged on a casual basis for a short period”, in s 170CC(1)(c) of the Workplace Relations Act, and the description “a casual employee engaged for a short period”, in reg 30B(1)(d). Both descriptions embrace an employee who works only on demand by the employer (or perhaps only by agreement between employer and employee) over a “short period” (whatever that may be). The essence of casualness is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work. But that is not inconsistent with the possibility of the employee's work pattern turning out to be regular and systematic. [emphasis added]

13. The last sentence has been deliberately emphasised to highlight the difference between [22] of the Outline of Submissions and [38] of the Full Court’s decision. In other words, the Full Court was not being dogmatic about a regular and systematic work pattern being inconsistent with casual employment. The Full Court appeared to contemplate the possibility that an employee could still be a casual if their work pattern was regular and systematic. The authority does not assist the Respondent’s case, in fact, it probably assists the Applicant’s case.

14. The second major difficulty with the Respondent’s contention is that even if the essence of casual employment was the absence of a firm advance commitment as to days and hours of work, that is precisely what has occurred in this case. The Applicant did not know from day to day whether she would be working, and what time she would be ending work that day. Of course, with hindsight the Respondent may well confidently assert that the Applicant worked 28 Wednesdays, 30 Thursdays and 32 Fridays, but that is not the relevant test for present purposes. When the Applicant was engaged, she made herself available for the whole week, but did not know precisely what days she would be working, or for how long on those days. In the Respondent’s own Affidavit, he refers to the concept of “flexibility” at paragraph 4, and the variability of the hours worked at paragraph 24. This is inconsistent with his case about reasonably predictable hours of work. At paragraph 16, he asserts that the Applicant would “be employed 2 to 3 days per week on Wednesday, Thursday and Friday”, leaving it quite clear that the actual hours to be worked was at his discretion, and dependent on need. This is hardly, with respect to the Respondent and those who represent him, the “firm advance commitment” referred to in Hamzy, that is inconsistent with the essence of casualization. Moreover, when one looks at the evidence of the actual hours worked, there was hardly a week where the finish time was identical. The only reasonable conclusion that can be drawn from the evidence is that it would have been impossible for the Applicant to know with certainty from week to week whether she was working, and if so, on what days and at what times she would finish work.

1. The Respondent’s contention is taken no further by reference to the manner in which the Applicant was paid. To suggest that a casual employee would need to be paid in a manner or in a pattern different to other types of employees is nonsense, is unsupported by any authority, and is contrary to clause 20.1 of the Award.

2. Having regard to the above, the Court finds that the Applicant’s employment with the Respondent was as a casual, not a part-time employee.

Determination

1. The Award states that the casual hourly pay rate of a Level 1 support services employee is $22.98. The Applicant was actually paid $18.00 per hour. There is no evidence before the Court of the total hours that she worked so the Court cannot make a finite order. Orders will be made to work around this issue if the parties are unable to resolve it. The Respondent has clearly contravened clause 10.4 of the Award.

2. The Applicant also sought an order for payment of the filing fee that she paid, in the sum of $210. Section 570 of the Act states:

   570 Costs only if proceedings instituted vexatiously etc.

   (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

   Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

   (2) The party may be ordered to pay the costs only if:

   (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

   (b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

   (c) the court is satisfied of both of the following:

   (i) the party unreasonably refused to participate in a matter before the FWC;

   (ii) the matter arose from the same facts as the proceedings.

3. The Court is satisfied that the filing fee is a cost “incurred by another party to the proceeding”.

4. However, the Court is not satisfied that the Respondent acted in an “unreasonable” manner in causing the Applicant to incur these costs. The Applicant was unsuccessful in her classification claim.

5. The Applicant also claims interest up to judgment. The power is found in s.76 of the Federal Circuit Court of Australia Act 1999. The Court is not satisfied that good cause has been shown for not making an order for interest: s.76(3). As the provision does not stipulate a rate of interest, in accordance with usual practice (see Workplace Ombudsman v Saya Cleaning Pty Ltd & Anor (No.2) [2009] FMCA 154 at [10]) this Court will adopt the rate of interest applied by the Supreme Court of NSW. Interest is to be calculated from the date the Applicant ceased working for the Respondent to the date of these Orders.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:         22 January 2016