Ohlsen v Melbourne's Finest Removalist
[2024] FedCFamC2G 1289
•27 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ohlsen v Melbourne’s Finest Removalist [2024] FedCFamC2G 1289
File number(s): MLG 2520 of 2024 Judgment of: JUDGE TAGLIERI Date of judgment: 27 November 2024 Catchwords: INDUSTRIAL LAW – review of a decision of Registrar – hearing de novo – small claims – underpayment claim – employment period covers three days – whether engaged as a full-time employee or casual employee – evidence indicates casual employee – underpayment not demonstrated – application dismissed Legislation: Fair Work Act 2009 (Cth) ss 15A, 124, 125A and 125B
Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Superannuation Guarantee (Administration) Act 1992 (Cth)
Road Transport and Distribution Award 2020
Cases cited: Canvin & Jesney [2021] FedCFamC2F 145 Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 22 November 2024 Place: Heard in Melbourne & Delivered in Hobart The Applicant: In person The Respondent: In person ORDERS
MLG 2520 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARK OHLSEN
Applicant
AND: MELBOURNE'S FINEST REMOVALIST
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
27 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Application for Review filed 8 October 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
On 25 July 2024, Mark Ohlsen (“the applicant”) filed an application for a small claim under the Fair Work Act 2009 (Cth) (“the Act”) against his former employer Melbourne’s Finest Removalist (“the respondent”). The applicant was employed over a period of three days and completed shifts on two days of those days.
The applicant's claim was that he is owed compensation from the respondent by virtue of a breach of the National Employment Standards contained within the Act. The total of his claim was for $1,916.90, which the applicant details as unpaid wages.[1]
[1] Small claim under Fair Work Act 2009 Form 5 filed 25 July 2024, ‘Part H – Remedy sought’ and ‘Part I – details of claim’.
Ultimately, the dispute between the parties relates to whether the applicant was employed as a casual employee or full-time employee and whether he was underpaid wages.
ORIGINAL DETERMINATION AND ORDER
As this was a small claim, it was initially heard and determined by a Registrar on 17 September 2024, pursuant to delegations provided for in Rule 21.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”). The applicant relied on his affidavit and gave oral evidence before the Registrar. The respondent did not file a response but filed an affidavit of managing director Zi Wang who gave oral evidence before the Registrar.
The Registrar dismissed the claim for reasons she gave orally.
THE REVIEW
On 8 October 2024, the applicant filed an Application for Review, pursuant to Division 21.2 of the Rules. The applicant seeks that the Orders of the Registrar be dismissed and his application reinstated. As this is a hearing de novo, I do not need to be satisfied that the Registrar fell into error in some way. Rather, I must consider and determine the claim afresh.[2]
[2] Canvin & Jesney [2021] FedCFamC2F 145, [39] in particular.
On 22 November 2024, the Application for Review proceeded to a hearing before me, at which each of the parties appeared as a litigant in person.
THE PARTIES’ CONTENTIONS
The applicant’s case
The applicant relied upon his affidavits filed 29 August 2024 and 8 October 2024. For the purposes of clarity and to correct apparent clerical mistakes in the affidavit material, the dates of relevance referred to by the applicant are Monday 8 April 2024,[3] Tuesday 9 April 2024,[4] Wednesday 10 April 2024[5] and Thursday 11 April 2024.[6]
[3] The date of initial communication between the parties.
[4] The first day of work and trial.
[5] The missed day of work.
[6] The last day of work.
The applicant’s case was that he was employed full-time as a Removalist Offsider with the respondent. His evidence is to the effect that there was an agreement made verbally on 8 April 2024 that he would work the next day, 9 April 2024, as a trial and that he was verbally offered full-time employment at the end of work that day. Further, that he agreed to work full-time for the respondent but could not immediately commit to starting on 10 April 2024 as he was still employed with another employer and needed to check if he was required to work elsewhere.
On 10 April 2024 he did not work due to a communication mix up described in his affidavit of 29 August 2024,[7] but the parties agreed he would work on Thursday 11 April 2024.
[7] At [5].
The applicant claimed that the parties had a concluded verbal agreement that he work full-time and that he left his previous employment to take up the position with the respondent.
In his Small Claim under the Act filed 25 July 2024 he seeks by way of underpayment of wages:
(a)$420 for eight hours of work on Wednesday 10 April 2024, being the day he agrees he did not work, and four hours of work on Thursday 11 April 2024, based on a rate of $35 per hour;
(b)One week’s pay in lieu of notice, being calculated as 40 hours of work, based on a $35 hourly rate; and
(c)Unpaid superannuation of $96.90.
The applicant further alleges that he was not provided with a Fair Work Information Statement (“FWIS”) or Casual Employment Information Statement (“CEIS”) but how this materially affects his claim is unclear. This is because whether an employee is a full-time or casual employee is not determined by what document the employer may provide to an employee. Instead, it is a question of law to be determined according to facts found in particular circumstances. I expressly raised this with the applicant who did not provide a satisfactory or logical explanation about the relevance of a failure to provide either statement.
In this review application the applicant also complained that the Registrar relied on an incorrect date and did not apply the correct provisions of the Act as to whether a CEIS was required to be provided. But, as this is a hearing de novo, the approach taken by the Registrar is largely irrelevant.
The respondent’s case
The respondent submitted that the applicant was engaged on a casual basis and that there was no agreement to engage the applicant for work full-time.
The respondent relied upon the affidavit of Zi Wang filed 12 September 2024.
THE LAW
The merit of the applicant’s case depends on whether the applicant was engaged as a full-time or casual employee.
A new definition of casual employee was introduced from 26 August 2024,[8] by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (“the Amending FW Act”). As the applicant’s employment commenced and ended well before 26 August 2024, the meaning of casual employee is that provided for in s 15A prior to the substitution effected by the Amending FW Act. It is as follows:
[8] Section 2 relating to Part 1 Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth).
15A Meaning of casual employee
(1)A person is a casual employee of an employer if:
(a)an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
(b) the person accepts the offer on that basis; and
(c) the person is an employee as a result of that acceptance.
(2)For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:
(a)whether the employer can elect to offer work and whether the person can elect to accept or reject work;
(b)whether the person will work as required according to the needs of the employer;
(c)whether the employment is described as casual employment;
(d)whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.
Note:Under Division 4A of Part 2‑2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full‑time employment or part‑time employment.
(3)To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
(4)To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.
(5)A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:
(a)the employee’s employment is converted to full‑time or part‑time employment under Division 4A of Part 2‑2; or
(b)the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.
At the time the applicant was employed in April 2024, there was an obligation on employers to provide a FWIS and/or CEIS.[9] But the amendments effected by the Amending FW Act to s 125B had not commenced at the time of the applicant’s employment. At the time of the applicant’s employment s 125B stated:
(1)An employer must give each casual employee the Casual Employment Information Statement before, or as soon as practicable after, the employee starts employment as a casual employee with the employer.
(2)Subsection (1) does not require the employer to give the employee the Statement more than once in any 12 months.
[9] Sections 125 and 125B respectively of the Fair Work Act 2009 (Cth).
THE EVIDENCE BEFORE THE COURT
The applicant deposed to the following in his affidavits:
(a)He sent a text message on 8 April 2024 in response to a job advertised by the respondent on SEEK.
(b)In a phone call with an employee of the respondent later that day he discussed attending a trial on 9 April 2024, the rate of pay for a trial and the rate of pay for full-time employment.
(c)Based on this phone call he agreed to undertake a trial.
(d)During his trial on 9 April 2024 he discussed the role being offered with an employee of the respondent and he was asked to commence work on 10 April 2024.
(e)The applicant advised he would need to discuss his availability with his current employer and would advise the respondent that evening.
(f)The applicant sent a text on the evening of 9 April 2024 to confirm he could start on 10 April 2024. The applicant sent a further text and called on the morning of 10 April 2024.
(g)The applicant did not receive any reply from the respondent.
(h)At 10:00am on 10 April 2024 the respondent called the applicant and provided an alternative number and it was agreed the applicant would start on 11 April 2024.
(i)He arrived at work 10 minutes late on 11 April 2024 and could not find any employees.
(j)He was then informed he was supposed to be on a job with another crew, which he had no knowledge of. He was put in an Uber to the job.
(k)The applicant completed a day of general duties.
(l)Upon arriving back at “base” he was told he was too unreliable.
(m)Later that day he received pay for 9 and 11 April 2024.
The respondent’s evidence was that:
(a)On 8 April 2024 the applicant sent a text to the respondent’s work mobile applying for a removalist labourer position.
(b)By way of return text message the applicant was asked to attend a trial on 9 April 2024.
(c)The applicant called back and Mr Wang and the applicant discussed the job offer. Mr Wang informed the applicant that the respondent was seeking a full-time or casual labourer.
(d)Mr Wang sent the warehouse details by text to the applicant.
(e)On 9 April 2024 the applicant arrived 20 minutes late to the warehouse.
(f)The applicant asked whether the respondent had work for him on 10 April 2024. Mr Wang said yes but the applicant did not confirm whether he could attend. Mr Wang did not agree to employ the applicant on a full-time basis given he was late and told the applicant he could start off on a casual basis until he proved he was reliable and experienced.
(g)Mr Wang did not receive confirmation that the applicant could attend work the next day by 5:00pm, at which time he disconnected from work. Mr Wang did not bring his work mobile phone home and did not see the applicant’s texts later that night.
(h)When Mr Wang saw the texts and calls from the applicant after 9:00am on 10 April 2024 and he then called the applicant back. Mr Wang agreed to another shift for the applicant.
(i)On 11 April 2024 the applicant arrived 30 minutes late. Mr Wang paid for an Uber to take the applicant to a job.
(j)At the end of the day Mr Wang informed the applicant that there was no work for him the next day because of how unreliable he was.
(k)Mr Wang informed the applicant he would be paid the trial rate of $30 per hour for the 9 April 2024 and the casual employee rate of $35 per hour for 11 April 2024.
WAS THE APPLICANT A FULL-TIME OR CASUAL EMPLOYEE?
There is no written agreement or employment contract between the parties which informs the nature of the applicant’s employment. The parties have given conflicting evidence about the agreement they reached on 8 and 9 April 2024.
The applicant highlighted that no FWIS or CEIS was provided to him and stated these could have clarified his employment status. At the hearing Mr Wang agreed that no statements had been provided to the applicant. There is no evidence before the Court that establishes either statement was provided and I find they were not provided.
However, I do not accept that either statement would have “clarified employment status”. The applicant has failed to explain how either statement would have clarified the true nature of his employment. Further, the provision of the statement(s) would not have clarified the nature of his engagement given the factual dispute between the parties. The information statements are general advisory statements and do not account for particular facts or agreements made between parties to an employment contract.
Regardless of my reasons at [23] and [24] above, the obligation to provide either a FWIS or CEIS is to provide it as soon as practicable after the employee starts employment. Given the very short period that elapsed I am not satisfied that either s 125 or s 125B of the Act have been contravened. I do not accept that it was reasonably practicable for the respondent to have provided either statement on 10 April 2024 as the applicant alleges because the evidence is that they communicated by phone and he did not attend work on 10 April 2024.
The issue of whether the applicant was a casual or full-time permanent employee depends on the findings I make about the matters in s 15A of the Act, which inform the meaning of casual employment. Having considered the evidence of the parties in their affidavits, the applicant has failed to establish on the balance of probabilities that there was an oral agreement that the applicant be employed full-time. That is because the evidence establishes the following facts:
(a)The parties agreed to a “trial” on 8 April 2024 at which time they discussed potential casual or full-time employment;[10]
(b)The applicant was still employed with another employer on 9 April 2024 and did not give a firm commitment to work the next day until 6:00pm or 7:00pm on 9 April 2024,[11] and further, there is no reliable evidence that he ever gave a commitment to full-time work in the future;
(c)The applicant was late for work on the first day, 9 April 2024,[12] did not work on 10 April 2024 and was also late on 11 April 2024, requiring Mr Wang to organise and pay for an Uber to get him to the location he was required to work;[13] and
(d)On 11 April 2024, Mr Wang told the applicant he was too unreliable and was no longer required for work.[14]
[10] Affidavit of Mark Ohlsen filed 29 August 2024 at [2].
[11] Affidavit of Mark Ohlsen filed 29 August 2024 at [4] and [5].
[12] Affidavit of Mark Ohlsen filed 29 August 2024 at [3].
[13] Affidavit of Mark Ohlsen filed 29 August 2024 at [6] and [7].
[14] Affidavit of Mark Ohlsen filed 29 August 2024 at [9].
I accept the evidence of the parties that during and at the end of work day on 9 April 2024, they discussed the applicant’s capability in performing the role of a removalist, but I consider it implausible that an oral agreement was specifically made for full-time employment and for that employment to commence immediately given the findings at [26] of these reasons. More likely, the parties had a general discussion about possible future work but the respondent did not offer a full-time role and the applicant did not immediately accept it. This is more consistent with the applicant needing to check if he would be required for work with his existing employer at the time.
The short time which elapsed, the applicant’s unwillingness to immediately commit to work on 10 April 2024 and his unreliability, means the applicant has failed to satisfy me that there was ever an oral agreement between the parties that he be employed full-time.
For the above reasons the applicant’s claim for underpayment of wages should fail. For the sake of completeness, I will also consider whether the applicant has been underpaid, accepting the respondent’s case that the applicant was employed as a casual employee.
The minimum hourly rate applicable for a furniture removalist, usually classified as a grade 1 or 2 Transport Worker under clause 17.1 of the Road Transport and Distribution Award 2020 (“the Award”) at the time of the applicant’s employment was either $23.89 or $24.46 per hour.[15] The casual rate for a furniture removalist under the Award at the time was the minimum rate plus a 25% loading, meaning that he ought to have been paid either $29.86 or $30.57 per hour.[16]
[15] MA000038 determination PR762147 – Road Transport and Distribution Award 2020.
[16] Clause 11.
As a casual employee the applicant was entitled to superannuation under the Award according to clause 20, meaning it was to be according to the Superannuation Guarantee (Administration) Act 1992 (Cth), which at the time of employment in April 2024 was 11% of gross wages.
The applicant was not entitled to a week’s pay in lieu of notice because I have determined there was no agreement for full-time employment.
The annexure to the applicant’s affidavit filed 8 October 2024 satisfies me that he received $365 for work he performed on 9 April and 11 April 2024. But there is no evidence to satisfy me of the number of hours worked each day. His evidence about this topic is silent and I have no payslips or timesheets before me.
Mr Wang states the applicant was paid at $30 per hour on the trial day and $35 per hour on 11 April 2024. As these rates are above the casual hourly rate and superannuation to be paid, I am not satisfied that the applicant has been underpaid as a casual employee.
While the applicant will likely be disappointed by this outcome, it is important to stress that he carried the onus of proof and was required to satisfy me of an agreement being made for full-time employment. He has not done so.
CONCLUSION
The application for review should be dismissed because the applicant was employed as a casual employee and he has not demonstrated that he was underpaid.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 27 November 2024
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