Skene v Workpac Pty Ltd
[2016] FCCA 3035
•24 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SKENE v WORKPAC PTY LTD | [2016] FCCA 3035 |
| Catchwords: INDUSTRIAL LAW – Whether worker was casual employee or other than casual – entitlement to annual leave pursuant to enterprise agreement – entitlement to annual leave pursuant to Fair Work Act 2009. |
| Legislation: Fair Work Act 2009 (Cth), ss.44, 86, 87, 90 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), s.45 |
| Cases cited: Director of Fair Work Building Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Hamzy v Tricon International Restaurants (2001) 115 FCR 79 MacMahon Mining Services Pty Ltd v Williams [2010] FCA 1321 Reed v Blue Line Cruises Ltd (1996) 73 IR 420 Re Metal, Engineering & Associated Industries Award (2000) 110 IR 247 Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 Wills v Nigaloo Resorts Pty Ltd [2011] FMCA 433 Williams v MacMahon Mining Services Pty Ltd [2009] FMCA 511 |
| Applicant: | PAUL ALEXANDER SKENE |
| Respondent: | WORKPAC PTY LTD |
| File Number: | BRG 457 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 14 July 2015 |
| Date of Last Submission: | 14 July 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 24 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Reed |
| Solicitors for the Applicant: | Slater & Gordon |
| Counsel for the Respondent: | Mr Wood SC with Mr Haddrick |
| Solicitors for the Respondent: | DLA Piper |
ORDERS
The parties agree short minutes of order reflecting the amount of compensation to which the applicant is entitled and which the respondent shall be ordered to pay according to these reasons;
The application be adjourned to 12 December 2016 at 9:30am for further directions concerning submissions relating to the imposition of a pecuniary penalty, if any, upon the respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 457 of 2014
| PAUL ALEXANDER SKENE |
Applicant
And
| WORKPAC PTY LTD |
Respondent
REASONS FOR JUDGMENT
Paul Skene worked for the respondent as a dump truck operator from 17 April, 2010 to 17 July, 2010 and then again from 20 July, 2010 to 17 April, 2012 at coal mining operations carried on in central Queensland.
In these proceedings he claims that he was a permanent full-time employee of the respondent and was entitled to annual leave and consequential entitlements, or payment in lieu of annual leave upon his employment coming to an end. The respondent is a labour hire company that supplied labour to various mining companies. It contends that Mr Skene was a casual employee and not entitled to annual leave and other entitlements he claims or payment in lieu of annual leave upon his employment coming to an end.
In these proceedings Mr Skene seeks:
a)the imposition of pecuniary penalties for contravention of:
i)s.44 of the Fair Work Act 2009 (Cth); and
ii)s.45 item 2 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth);
b)compensation for the respondent’s contraventions of those Acts in the form of payment to him of what he claims is owed by way of annual leave and annual leave loading.
There are two principal issues for determination. The first is whether Mr Skene was entitled to annual leave pursuant to cl.19.1.1 of the Workpac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007 when he worked for the respondent. The second is whether Mr Skene was other than a casual employee for the purposes of s.86 of the Fair Work Act. If he was either within cl.19.1.1 of the WorkPac Agreement or other than a casual employee for the purposes of s.86 of the Fair Work Act, he is entitled to the payment of the value of untaken paid annual leave on termination of his employment with the respondent. If he was neither, his claim must fail.
Background
The respondent operates a labour hire business that supplies labour to operators of coal mines in central Queensland. In early April, 2010 Mr Skene responded to an advertisement by the respondent for a position as a truck driver at Anglo Coal’s Dawson Mine in central Queensland. He telephoned the contact person in the advertisement and sent the respondent his resume.
He was subsequently notified by the respondent that his application was successful. He attended at the offices of the respondent on 16 April, 2010 where he received a “Notice of Offer of Casual Employment”. He executed a document entitled “Casual or Fixed Term Employee Terms & Conditions of Employment”.
Mr Skene took up his employment at Dawson Mine, near Moura in central Queensland, as a dump truck operator. His position was more properly described in his employment documents as “mobile plant operator”. His position was a “drive in/drive out position”. That is to say, Mr Skene had to transport himself to and from his workplace at Dawson Mine. That was a six hour drive, each way, from his home in Cooroy in south east Queensland. He worked on a rotation so that he worked a number of days and then had a number of consecutive days at home. He was employed by the respondent at Dawson Mine from 19 April, 2010 until 17 July, 2010.
Importantly, on 16 April, 2010 Mr Skene executed a document entitled “Casual or Fixed Term Employee – Terms and Conditions of Employment (Version 1.2)”. His execution of that document acknowledged that Mr Skene had read, understood and agreed to the content of that eight page document. Relevantly, that document provided:
1.The terms and conditions covered in this document provide general information regarding your engagement with Workpac Pty Ltd. Your specific entitlements will be determined by the award or agreement that covers your employment and these may vary from engagement to engagement depending on the type of work you perform. To view a copy of the relevant award and agreement please speak to your Workpac Pty Ltd representative.
This document, once signed, has the force of law as a contract and will apply to all assignments with any member of the WorkPac Group of Companies, whether existing at the time of signing this document or later added to the membership of the Group.
…
2. INTERPRETATION
In this agreement the terms below shall have the following meanings, unless their context otherwise requires:
Employee:The individual employed on a Casual or Fixed Term basis by WorkPac as per the terms and conditions set out in this document, and the notice, to carry out work assignments under the direction or (sic) WorkPac’s clients.
Client:The company, partnership, individual or agent that WorkPac does business with and where the employee will carry out duties as requested on behalf of WorkPac. The client shall be responsible for issuing the employee with work, safety and induction instructions.
3. LOCATION
This assignment applies for the engagement of the employee with any of WorkPac’s clients. Location of the client’s site and information for each separate assignment will be advised to the employee via the Notice of Offer of casual or Fixed Term Employment.
These terms and conditions are to be read in conjunction with WorkPac’s Notice of Offer of Casual or Fixed Term Employment.
4. DURATION OF AGREEMENT
4.1The terms and conditions in this document commence on the date it is signed and continues in force until revoked by the employee or the employer.
4.2The terms and conditions in this document apply to all assignments undertaken by the employee on behalf of WorkPac. The parties will not execute a new terms and conditions document for each separate assignment.
5. CASUAL OR FIXED TERM EMPLOYMENT ASSIGNMENTS WITH WORKPAC
5.1Employment with WorkPac is on an assignment-by-assignment basis, with each assignment representing a discrete period of employment on a Casual or Fixed Term hourly basis.
…
5.3The employee may accept or reject any offer of an assignment.
…
5.11Casual employees will serve a 12 month probationary period and Fixed Term employees a 6 month probationary period.
5.12A casual assignment with WorkPac may be terminated at any time by the giving of one (1) hours notice.
…
7.8 Annual Leave
All fixed term permanent employees shall accrue annual leave at the rate of four weeks for each completed year of service.
…
During his employment, the travel to and from Dawson Mine took its toll on Mr Skene. So, in about June, 2010 he started searching for a “fly in, fly out” position at a suitable mine site. He eventually found an advertisement by the respondent for a fly in, fly out position as a dump truck operator at a coal mining operation in Clermont, central Queensland.
In response to the advertisement, Mr Skene telephoned Nicole Gray, the person identified in the advertisement as the respondent’s contact person for the position. I have evidence from Ms Gray. She was, at the relevant time, the respondent’s recruitment co-ordinator for the “Sunshine Coast Business Centre”. She was responsible for recruiting workers to be deployed at Rio Tinto Coal Australia Pty Ltd’s Clermont mine.
During his telephone conversation with Ms Gray, Mr Skene asked her about the advertised position. She told him that the position involved 12 hour shifts, on “a 7 days on, 7 days off” roster arrangement. Mr Skene alleges that Ms Gray also said that after the first three months, which was a probationary period, he would be made permanent. Ms Gray denies that she “would have” said any such thing to Mr Skene.
Further, she says that she “would not have” said anything to Mr Skene about being on probation for any period. She suggests that there would be no reason for Mr Skene to be placed on probation because his position could be terminated on one hour’s notice. That, however, is inconsistent with the general terms and conditions given to Mr Skene at the commencement of his work for the respondent at Dawson Mine. Those terms and conditions provided for a 12 month probationary period for casual employees.
I do not accept Ms Gray’s evidence about this. It was not specific, but rather couched in terms of what “would have” or “would not have” been said. Moreover, her claims are inconsistent with the respondent’s own terms and conditions of employment given to Mr Skene. I am satisfied that Ms Gray said to Mr Skene that after his first three months, a probationary period, he would be made permanent.
That, however, says nothing of the nature of the employment relationship between the respondent and Mr Skene at the time of his employment for work at Clermont Mine, or whether the suggested change in status to permanent employee actually occurred.
I accept that Ms Gray advised Mr Skene that the position was at Clermont Mine, operated by Rio Tinto Coal Australia in central Queensland. She told him that his wages would be a flat rate of $50 per hour. Flights and accommodation were “included’’. He would be flying out of Brisbane airport and into Clermont Airport at the commencement of each seven day “on” period and vice versa at the end of each rotation. At Ms Gray’s request, Mr Skene emailed her his resume.
Ms Gray called Mr Skene about a week later and advised him that he had been successful in obtaining a fly in, fly out position with the respondent performing work at Rio Tinto’s Clermont Mine. She again advised him during this conversation that his hours would be 12 hours per shift on “a 7 days on, 7 days off” continuous roster arrangement. She advised him that an “information pack” would be sent to him via the post. However, Mr Skene’s evidence is that it never arrived.
On or about 16 July, 2010 Mr Skene drove to the offices of the respondent on the Sunshine Coast, Queensland where Ms Gray provided him with the information package. The information package included:
a)a “Notice of Offer of Casual Employment” dated 16 July, 2010;
b)an “Induction Verification Form” for Clermont mine;
c)general information about the position at Clermont including information about accommodation and flights which had been arranged for him.
Neither party suggests that the respondent gave to Mr Skene another “Casual or Fixed Term Employee – Terms and Conditions of Employment (Version 1.2)” document or anything like it. That is consistent with cl.4.2 of the Terms and Conditions of Employment (extracted above). Mr Skene’s employment was on an “assignment by assignment” basis but always upon the same general terms and conditions executed by him when he took up his first assignment at Dawson Mine.
The “Notice of Offer of Casual Employment” dated 16 July, 2010 relating to the Clermont Mine position relevantly provided:
Assignment for: RIO TINTO – CLERMONT MINE
Assignment Address/Location: Clermont Mine CLERMONT QLD 4721
…
Daily Working Hours: 06:000am – 06:00pm
(This may vary and is a guide, any significant changes notify WorkPac)
…
Please note:Your ordinary hours of work shall be a standard work week of 38 hours. Additional reasonable hours may be worked in your rostered arrangements.
Length of Assignment: 3 Months (This may vary and is a guide only.)
…
Your Pay rate is a Flat Rate of : $50.00 per hour
Mr Skene ceased work at Dawson Mine on 17 July, 2010 to take up his new assignment. On 20 July, 2010 at about 6.00am, he commenced his induction with Rio Tinto at Clermont Mine. There were approximately 20 other inductees present. As part of his induction, Ms Amanda Fardell of Rio Tinto informed him (and the other inductees) that his hours of work would be 12.5 hours per shift on “a 7 days on, 7 days off continuous roster arrangement”.
Mr Skene was assigned to “C Crew” which was comprised of employees of the respondent and of Rio Tinto. The C Crew roster provided for day shifts from 6.30am to 7.00pm and for nightshifts from 6.30pm to 7.00am. On commencing work with C Crew, Mr Skene was given a copy of his roster that covered a period that ended in December, 2010. He was under the control and direction of Rio Tinto while he was at Clermont Mine.
The induction took three days. After it was complete Mr Skene moved to camp-style accommodation located at the mine. For the first couple of 7-day rotations, he was given a different room each time. He was then assigned a permanent single room. From then on, every time he flew to Clermont to work his roster he stayed in the same room. When he was not on roster, another employee on the opposite roster to him used the room. While on days off, his personal belongings were stored in boxes under the bed in his allocated room. The flight and accommodation was provided to him at no cost. The costs of those facilities were met, according to Ms Gray, by Rio Tinto.
Mr Skene worked according to his roster. That meant he worked for seven days straight and each day of the week (including Sundays). He also worked on public holidays if his roster called for him to do so. The only exception was three days at Christmas 2011 when he did not work.
Mr Skene’s evidence was that he received from Rio Tinto rosters for his crew at Clermont Mine which had been worked out by Rio Tinto 12 months in advance. I accept that evidence. The rosters covered a calendar year and commenced in January. Thus, in January, 2011 and then January, 2012 Mr Skene was provided with 12 month rosters in advance for each of those years.
Mr Skene was paid weekly by the respondent. He was required to fill out a weekly timesheet provided to him by the respondent. He was paid for the hours worked by him. He received pay for 62.5 hours in the first week and for 25 hours in the second week of each two week period in a pattern which endured. Mr Skene’s pay slips are in evidence. They confirm that pattern of work and payment. With two exceptions, the pattern was constant throughout Mr Skene’s employment at Clermont Mine.
On about 11 April, 2012 Mr Skene received an increase in his rate of pay to $55 per hour.
Mr Skene was flown in and out of Clermont Mine at the beginning and end of each 7-day period of work. He was not required to pay any amount for accommodation or for flights to and from the mine.
On 15 April 2012, Mr Skene was stood down during a shift and not required to work the following day. He was paid for each of those shifts. On 23 April 2012, he attended a meeting with a manager of the respondent to discuss conduct allegations made against him. On 24 April, he was removed from Clermont Mine and did not work for the respondent again.
For the entire period of his employment at Clermont Mine, Mr Skene performed the duties of a dump truck operator. He continued to work a pattern of seven shifts of 12.5 hours per shift, followed by seven days off in accordance with the pre-set roster provided by Rio Tinto. He remained part of C Crew for the duration of his employment with the respondent at the Clermont mine. He did not work any other shifts apart from those set out in the rosters.
During the period of his employment with the respondent at Clermont Mine, Mr Skene did not take any paid annual leave, although he did take unpaid leave which he arranged with Rio Tinto between 11 and 17 October, 2011. That he should arrange that time with Rio Tinto’s representatives rather than the respondent is consistent with the general terms and conditions provided “During the period of any assignment, the employee is under the care and supervision of WorkPac’s clients”.
On termination, Mr Skene was not paid anything in respect of untaken annual leave. He had accrued no such leave in the books and records of the respondent. The respondent’s case is that Mr Skene was not entitled to accrue any annual leave or to receive payment for it at the conclusion of his employment.
Mr Skene contends that he was continuously employed until his employment came to an end as I have set out below. The respondent contends that he was engaged “on a number of separate engagements” and not continuously as Mr Skene alleges.
However, I accept Mr Skene’s case that he was continuously employed by the respondent from July, 2010. Although it was suggested to Mr Skene that he may have received two further documents headed “Notice of Offer of Casual Employment” relating to his work at Clermont Mine, he had no recollection of receiving them. I do not accept that Mr Skene was ever sent those documents or that he received them. In any event, there is no evidence that Mr Skene’s initial engagement by the respondent for work at Clermont Mine was, prior to April, 2012 brought to an end by either Mr Skene or the respondent by notice or otherwise.
Mr Skene alleges that he had an entitlement to six weeks paid annual leave per year pursuant to s.87 of the Fair Work Act and cl.19.1.1 of the Workpac Agreement, to be paid at his ordinary hourly rate of pay applicable immediately prior to the taking of the annual leave, together with leave loading of 20%.
On 20 May 2014, Mr Skene initiated these proceedings. A trial was set down for 14 July, 2015. However on 13 July, 2015 the respondent sought leave to file an amended response and a defence that introduced a restitutionary cross-claim against Mr Skene. The respondent sought that its cross-claim be heard and determined after the initiating application had been heard and determined. I gave the respondent leave to file its amended defence but I refused leave to add the cross-claims for reasons that I delivered at the time.
Consideration
There is no dispute that Mr Skene was an employee of the respondent. The issue is the nature of his employment and the entitlements that might accrue to him once the true nature of his employment by the respondent is determined. Mr Skene’s claim to annual leave and annual leave loading is prosecuted on two distinct bases. First, he argues that his entitlements derive from cl.19.1.1 of the WorkPac Agreement. Second, he argues that his entitlements accrue from ss.87 and 90 of the Fair Work Act.
The WorkPac Agreement
I will deal with the claim based upon the WorkPac Agreement first.
The relationship enjoyed between an employer and an employee is a contractual relationship. Having regard to the facts set out above, the rights and obligations enjoyed by Mr Skene and the respondent in their employment relationship have a number of sources, namely:
a)the document entitled “Casual or Fixed Term Employee – Terms and Conditions of Employment (Version 1.2)”;
b)the Notice of Offer of Casual Employment signed by Mr Skene on 16 July, 2010;
c)the WorkPac Agreement; and
d)the Fair Work Act.
The characterisation of the true contractual nature of Mr Skene’s employment is derived from a consideration of each of those sources and they are “simply matters to be taken into account in determining the true character of the employment.”: Reed v Blue Line Cruises Ltd (1996) 73 IR 420.
But the true nature of Mr Skene’s employment is of little moment to his claim based upon cl.19.1.1 of the WorkPac Agreement. His entitlements derived from that agreement depend upon the terms of the agreement and an application of the facts as found to those terms.
Clause 19 of the WorkPac Agreement deals with various types of leave entitlements for employees. Clause 19.1 deals with annual leave and is headed “Annual Leave (Permanent FTMs)”. The acronym “FTM” is defined in the agreement to mean “All WorkPac On-hire employees covered by this Agreement” (cl.1.2.2). Neither party suggests that Mr Skene was not covered by the agreement. Indeed, the application of the agreement to Mr Skene was admitted by the respondent.
Clause 19.1 provides:
19.1 Annual Leave (Permanent FTMs)
19.1.1 Entitlement
(a) The amount of annual leave entitlement depends upon the FTM’s roster. The amounts are:
FTM’s Roster:Annual Leave Entitlement:
Monday to Friday only 5 weeks6 day roster to 5 day weekend
roster 5 weeks7 day roster of 7 ordinary
hour shifts 30 ordinary working daysRosters which require work
on public holidays and at
least 34 Sundays per year. 6 weeksOther rosters As agreed between the relevant parties or, in the absence of agreement, to be dealt with in accordance with Clause 19.1.3.
(b) Where an FTM changes roster during the course of the year, the FTM’s entitlement to annual eave will be calculated on a pro rata basis.
(c) A guide for establishing the amount of annual leave for other rosters is:
(i)six weeks per year for:
· seven day rosters, or
· rosters requiring work on public holidays and at least 34 Sundays per year; and
(ii)five weeks per year otherwise.
(d)The period of annual leave shall be exclusive of any public holiday that occurs during the period.
(e)Annual leave may be taken in any combination of days or weeks agreed between the Company and the FTM.
(f) Annual leave is cumulative from year to year.
(g) Part-time FTMs accrue annual leave on a pro-rata basis.
19.1.2 Rate of Pay for Annual Leave
Annual leave shall be paid at an FTM’s ordinary hourly rate, as applicable immediately prior to the taking of annual leave.
19.1.3 Calculation of Annual Leave Pay
(a) A base rate FTM taking annual leave must be paid the greater of:
· the FTM’s ordinary rate of pay plus loading of 20% of that rate, or
· the FTM’s projected roster earnings for the period of annual leave, including:
Roster Type
7 DayRostered Saturday, Sunday and Public Holidays (up to double time), shift allowances and any rostered overtime
6 Day Rostered Saturday, Sunday and Public Holidays (up to double time) and any rostered overtime
Monday to Friday Any rostered overtime
(b) Annual leave for flat rate FTMs shall be paid based on the flat rate of pay as prescribed by Schedules 3 and 4 for the classification of work performed. No additional leave loading is payable on the flat rate.
19.1.4 Notice of Taking Annual Leave
An FTM must give one month’s notice of their intention to take annual leave. Annual leave applications are approved or declined by the Company upon consideration of its operational requirements.
Aside from the heading to cl.19.1.1 there is nothing in the text of cl.19 to suggest that its provisions apply only to a “permanent FTM”. The argument before me proceeded on a number of tacit assumptions, namely:
a)Clause 19.1.1 applies only to “permanent FTMs”;
b)A “casual FTM” was not a “permanent FTM”, at the very least, for the purposes of cl.19.1.1 of the agreement;
c)Mr Skene was either a casual FTM or a permanent FTM. Mr Skene did not suggest that the term “permanent FTM” could include a casual employee employed, for example, on a long term basis;
d)If I determined that he was not a “casual FTM” he must therefore be a “permanent FTM” for the purposes of cl.19.1.1 of the agreement; and
e)The question to be addressed for the purposes of the WorkPac Agreement was whether Mr Skene was a “casual FTM”.
However, in my view, the more relevant enquiry is whether Mr Skene was a “permanent FTM” and therefore within the application of cl.19.1.1 of the agreement.
The term “permanent FTM” is not defined in the WorkPac Agreement.
Clause 5.5.1 of the WorkPac Agreement is headed “Status of Employment” and provides:
5.5.1 Status of Employment
5.5.1FTMs under this Agreement will be employed in one or more of the following categories:
(a) full-time FTMs; or
(b) part-time FTMs; or
(c) casual FTMs; or
(d) limited term or assignment FTMs; or
(e) FTMs employed for a specific project/site or workplace related task.
5.5.2FTMs engaged in each of the above categories will be engaged as either a base rate FTM or a flat rate FTM. The method of remuneration for base rate and flat rate FTMs is set out in clause 8.
5.5.3FTMs engaged and paid the base rate of pay shall be referred to in this agreement as Base Rate FTMs.
5.5.4FTMs engaged and paid the flat rate of pay shall be referred to in this agreement as Flat Rate FTMs.
5.5.5Casual FTMs will be engaged by the hour on one of the following basis:
(a) A person engaged as a base rate casual, as defined in clause 8.1.1, will be paid a casual loading of 20% on the rates prescribed herein. The casual loading is in lieu of all paid leave entitlements (with the exception of long service leave).
(b) A person engaged as a flat rate casual, as defined in clause 8.1.1, will not be paid an additional amount as the casual loading has been incorporated into the flat rate of pay.
5.5.6At the time of their engagement, the Company will inform each FTM of the status and terms of their engagement.
Clause 5.1 identifies five separate categories of employment. They are not, as the words of cl.5.1 acknowledge, mutually exclusive. An FTM under the agreement might be employed in one or more of the specified categories. Notwithstanding that, there is some obvious mutual exclusivity between some of the categories (e.g. full-time/part-time) but it is not so obvious in respect of the other categories. However, recourse to cl. 5.1 does assist to determine whether Mr Skene was a “permanent FTM” for the purposes of cl.19.1.1.
If I approach the case by adopting the implicit assumption underlying the parties’ submissions that Mr Skene was either a permanent employee or a casual employee, it is relevant to consider the circumstances in which an employee might be a “casual FTM” for the purposes of the agreement.
As can be seen above, cl.5.5.5 provides that casual FTMs “will be engaged by the hour” on one or another of the specified payment regimes. Here, the “Casual or Fixed Term Employee – Terms and Conditions of Employment (Version 1.2)” provides for Mr Skene’s employment to be on an assignment-by-assignment basis, with each assignment representing a discrete period of “employment on a Casual or Fixed Term hourly basis”.
The “Notice of Offer of Casual Employment” signed by Mr Skene on 16 July, 2010 does not refer to his engagement, “by the hour”. There are aspects to the terms of the offer that tend against the suggestion that his engagement was not “by the hour”. For example:
a)Although a length of three months was specified for the assignment, that indication was a guide only. No period was set for the length of the engagement. The terms of the offer are consistent with the position being an ongoing undertaking;
b)Mr Skene’s pay was to be calculated according to a flat rate and the hours worked by him. But having regard to the other provisions of the WorkPac Agreement that relate to the payment of other employees, that does not assist one way or the other to determine Mr Skene’s status. All employees, permanent or otherwise, according to the agreement have their wages calculated according to the number of hours worked and the hourly rate applicable to them;
c)The hours of work are specified in the offer are fixed – 6.00am – 6.00pm over a standard work week of 38 hours plus potentially, additional reasonable hours;
d)Payment of his wages would be made on a weekly basis on the same day (Thursday) each week.
The Notice of Offer of Casual Employment is inconsistent with the proposition that Mr Skene was engaged “by the hour” and that he would have the right to refuse work on any particular day or that he could choose when and for how long he might work on any particular occasion. Indeed, the “Casual or Fixed Term Employee – Terms and Conditions of Employment (Version 1.2)” that applied to Mr Skene’s employment expressly provided that:
5.4 The employee agrees to complete an assignment once the employee has agreed to it. Should the employee elect not to complete the assignment for whatever reason, WorkPac reserves the right to recover any costs incurred related to the employee’s assignment.
No provision is made in the Notice of Offer of Casual Employment about termination of Mr Skene’s employment. The general terms and conditions provide for casual employees to terminate their employment on an hour’s notice (cl.5.12). But that provision only applies to casual employees and does not provide an answer to the question “who is a casual FTM?”
Moreover, whilst Mr Skene could have brought his employment to an end before the end of the assignment term (as ill-defined as that was) he would do so under the threat that the respondent might recover costs “incurred related to” his assignment from him.
On balance it is likely that Mr Skene was not engaged “by the hour” consistently with the suggestion in cl.5.5.5 of the WorkPac Agreement that casual term employees would be engaged by the hour. In any event, even if I am wrong about that, that Mr Skene might have been engaged by the hour does not necessarily mean that he was a casual FTM for the purposes of the agreement. Other employees, specifically probationary FTMs who were other than casuals could be terminated upon one hour’s notice.
Apart from a casual FTM being a person who “will be engaged by the hour”, cl.5.5.6 of the general terms and conditions provides for the respondent to inform the employee of their “status and the terms of their engagement”.
The offer of employment for the position at Clermont Mine was entitled “Notice of Offer of Casual Employment”. Apart from that heading, there is no other reference in the offer to Mr Skene’s employment having a “casual” status. However, both Ms Skene and the respondent’s witness Ms Gray gave evidence that they considered the employment to be casual employment. In cross-examination Mr Skene gave evidence that he was never notified that his employment status changed. That is to say, he considered that his employment was casual.
The assessment of the nature of Mr Skene’s employment for the purposes of the WorkPac Agreement must be made as at the commencement of his employment. But is it made by applying an objective test, or a subjective test? If it is the former, one might conclude against the employment being of a casual nature. If it is the later, the parties’ subjective view will determine the matter.
If I was determining the true nature of Mr Skene’s employment status having regard to his contract of employment, the objective test must be applied. It matters not what description the parties assign to their relationship. It is their mutual intention that must be objectively ascertained from the words of their agreement and the other matters to which I have earlier referred.
However, I am not considering that matter, but rather, whether Mr Skene is a casual FTM for the purposes of the WorkPac Agreement. By cl.5.5.6 his status as such is left up to the respondent at the time of his engagement. The heading to the offer of employment at Clermont Mine is sufficient in my view to impress his employment with the status of “casual FTM” for the purposes of the agreement. That is to say, the subjective approach should be applied. The respondent has informed Mr Skene of his status and the terms of his engagement for the purposes of cl.5.5.6 of the WorkPac Agreement.
That view is consistent with the approach taken by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365. In that case, the Manufacturing and Associated Industries and Occupations Award 2010 provided in cl.14.1 that “A casual employee is one engaged and paid as such”. As to the correct approach to be adopted to determine whether an employee came within that definition, White J said:
137. The FWO submitted that both Mr James and Mr Kouka should be characterised as casual employees and that they had not been paid the casual loading. The submissions of the FWO proceeded on the basis that the status of the men as casuals or otherwise was to be determined by the general law. …
138. However, in my opinion, the approach for which the FWO contended is not the correct approach. Regard must be had instead to the definition of “casual employment” in cl 14.1, namely, that a “casual employee is one engaged and paid as such”. That definition is to be understood in the context of the Award as a whole and, in particular, in the context of its provisions concerning full-time and part-time employment.
After setting out cll.12 and 13 of the Award which dealt with full-time and part- time employment, his Honour continued:
141. The word “engaged” in cl 14.1 of the Award is capable of more than one meaning. On one view, it can refer to the way in which the parties themselves identified their arrangement at its commencement. On another view, it can be a reference to the objective characterisation of the engagement, as a matter of fact and law, having regard to all the circumstances. Support for the former construction is seen in the decision of the Full Bench of the Fair Work Commission in Telum Civil (Qld) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434. The Full Bench said at [38]:
[38] All of the modern awards contain a definition of casual employment. Those definitions, notwithstanding some variation in wording, have the same core criteria:
(i) That the employee was “engaged” as a casual - that is, the label of “casual” is applied at the time of time of engagement; and
(ii) That the employee is paid as a casual, and specifically, the employee is paid a casual loading (set at 25% in all of the modern awards, subject to transitional arrangements), which loading is paid as compensation for a range of entitlements that are provided to permanent employees but not to casual employees.
(Emphasis added)
142. The second construction is seen in the decision of Industrial Relations Commission of Western Australia in Loves Bus and Taxi Service v Zucchiatti [2006] WAIRC 5758; (2006) 157 IR 348. Ritter AP, with whom Beech CC and Mayman C agreed, said at [45]:
[45] I also do not think that the Commissioner was in error in not finding the respondent was engaged as a casual, pursuant to clause 14(5) of the award. This definition refers to a “worker engaged and paid” as a casual worker. This definition means that just because somebody is paid as a casual employee does not mean that they are a casual employee under the award. This is because they must also be “engaged as such”. The reference to the engagement of the worker in my opinion directs attention to the basis upon which the worker was employed as a matter of law and fact. It does not simply direct attention to the label placed upon the status of the worker by the parties. …
(Emphasis added)
143. None of the parties addressed any submissions to these competing constructions. That is cause for pause before expressing any concluded views of general application.
144. It is sufficient in my opinion to state that, in the present case, the former construction draws support from two considerations and should be adopted. First, the term “specifically engaged” in cl 12 indicates that the focus is on the agreement of the parties at the commencement of the employment as to the character of the employment. Secondly, the requirement in cl 14.3 for the observance of formality at the time of engagement of a casual employee suggests that the word “engaged” is directed to the agreement made between the parties rather than to the manner and circumstances in which the employee does in fact carry out his or her work.
Similar considerations apply here. By cl.5.5.6 it is for the respondent to inform the employee of their status at the time of their engagement. Clause 5.5.6 is directed to the subjective intention of the respondent and the status assigned to the employee at the time of the engagement by the respondent. The offer of “casual employment” is sufficient, in my view, to engage cl.5.5.6 of the WorkPac Agreement and impress upon Mr Skene the status of “casual FTM”.
Having regard to the way in which the parties conducted the case, that finding must mean that Mr Skene is not a “permanent FTM” and cl.19.1.1 has no application to him.
Section 86 of the Fair Work Act
I will now turn to Mr Skene’s claim to an entitlement to annual leave pursuant to ss.87 and 90 of the Fair Work Act. Those provisions will only operate to give him an entitlement to annual leave if he is other than a casual employee.
Before discussing this aspect of the matter further, however, it is necessary to say something about the relationship between the finding I have made to the effect that Mr Skene was a casual FTM for the purposes of the WorkPac Agreement and the finding that must be made for the purposes of s.86 of the Fair Work Act. The finding in one does not determine the outcome of the other. That is to say, even though Mr Skene might be a casual FTM for the purposes of the WorkPac Agreement, he may nonetheless not be a casual employee for the purposes of s.86 of the Act.
The point is illustrated by Reed v Blue Line Cruises. In that case, Moore J needed to determine whether the provisions of Div. 3 of Part VIA of the Industrial Relations Act 1988 (Cth) applied to the employment of the applicant. That turned upon whether he was a “casual employee” as that expression appeared in reg 30B of the Industrial Relations Regulations (Cth). The applicant’s employment was governed by a contract of employment and by the provisions of the Marine Charter Vessels (State) Award. The Award created “a dichotomy between employees engaged indefinitely and employees engaged for casual work” (at p.424). His Honour identified, however, that the legal issue that arose in the proceedings was what was comprehended by the expression “engaged on a casual basis” to the extent that that it was reflected in reg 30B. At p.424 his Honour continued:
The characterisation of Reed’s employment by either Reed and/or representatives of the Company generally or in a document, and the provisions of the Award, are simply matters to be taken into account in determining the true character of the employment.
In Australian domestic law, the expressions “casual employee” or “casual employment” are expressions with no fixed meanings: see Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 at 551 per Stark J, 555 per Dixon J and 565 per McTiernan J; Australasian Meat Industry Employees’ Union v Sunland Enterprises Pty Ltd (1988) 24 IR 467 at 473 per Gray J and Ryde– Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 at 389. In my view, it would be wrong in principle, to treat the character ascribed by an award to particular employment and adopted by the parties as determining conclusively the character of the employment for the purposes of regulation 30B which reflects employment described in Art 2(2) of the Convention.
(my emphasis)
For the reasons expressed by Moore J above, it is not surprising that for the purposes of an industrial agreement, an employee might have a particular status which is dependent upon subjective matters such as the status ascribed to the employment by the parties, but for the purposes of the Fair Work Act, the same employee might have a status which, on its face, is not described in the same way as the status the employee holds for the purposes of the industrial instrument.
The Fair Work Act deals with annual leave in Division 6 of Part 2-2. Section 86 of the Act provides that “This Division applies to employees, other than casual employees”. Division 6 contains other provisions and is concerned primarily with the calculation and entitlement to annual leave. Section 87(1) is relevant to the amount of annual leave Mr Skene might claim if the Court finds that he was other than a casual employee and therefore not excluded from the operation of Division 6.
The Fair Work Act contains no definition of casual employee. A determination of whether an employee is a casual employee depends upon an application of the principles developed in a number of cases for the identification of such employees. However, the parties disagree upon the approach I should take to the identification of Mr Skene’s employment status for the purposes of the Act. What is clear however, is that irrespective of which authority is considered, whether a person is a casual employee or some other type of employee is a question of fact to be determined having regard to the circumstances pertaining to the particular employee the subject of the Court’s consideration.
There was considerable debate in submissions about whether there was a “common law” definition or approach to the identification of a “casual employee”. Mr Skene’s submissions suggested that there was and that I ought to apply it. Counsel for Mr Skene pointed to Williams v MacMahon Mining Services Pty Ltd [2009] FMCA 511 as setting out the current approach to a consideration of whether an employee is a casual employee for the purposes of industrial statutes.
In Williams v MacMahon Mining Services Pty Ltd Lucev FM (as his Honour then was) collected the authorities and summarised the relevant principles as follows (footnotes omitted):
28. The question of whether an employee is a casual employee is a question of fact.
Traditional Definition of “Casual Employee”
29. In Doyle v Sydney Steel Co Ltd, Starke J said:
The description “casual worker” is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact…
30. In Doyle Dixon J said:
But unfortunately what is casual employment is ill defined. Indeed it is scarcely too much to say that it seems open to a tribunal of fact to treat most forms of intermittent or irregular work as casual.
31. In Doyle McTiernan J considered the expression “is not capable of exact definition” and that “[e]ach case is to be determined on its own facts…”
32. In Reed v Blue Line Cruises Ltd, Moore J observed:
What then, is likely to have been the feature of the employment at the time of the engagement that would characterise it as an engagement on a casual basis? Plainly it involves a notion of informality or flexibility in the employment following the engagement…
A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.”
33. In Melrose Farm Pty Ltd trading as Milesaway Tours v Milward the Western Australian Industrial Appeal Court said:
In Australian law, the expression “casual employee” or “casual employment” are expressions with no fixed meanings: …Reed v Blue Line Cruises Ltd (1996) 73 IR 420, 425 (Moore J) … the issue before Moore J was whether Reed was a casual employee as that expression appears in reg 30B of the Industrial Relations Regulations (Cth). Having observed that “casual employee” has no fixed meaning in Australian domestic law … went on to consider the characteristic of casual employment…
A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which the employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual (425).
In Hamzy v Tricon International Restaurants [2001] FCA 1589: 115 FCR 79 the Full Court of the Federal Court said… that the essence of casual employment 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.
There is no one definitive test to distinguish between casual and permanent employees. There are several features characteristic of casual employment.
His Honour observations were approved by Barker J on appeal in MacMahon Mining Services Pty Ltd v Williams [2010] FCA 1321. The applicant argues that these principles have been consistently applied by this Court and drew my attention to Director of Fair Work Building Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097 at [345]-[349] and Wills v Nigaloo Resorts Pty Ltd [2011] FMCA 433 at [17]-[18].
Having regard to the principles set out in MacMahon and the case there gathered, Mr Skene argues that his employment was, inter alia, continuous, predictable, and determined in advance by rosters. It should, he says, be seen as other than casual employment for the purposes of s.86 of the Fair Work Act.
Senior counsel for the respondent disavowed that there was any ordinary common law meaning for the expression “casual employee”. Instead, he suggested that if anything, there was a common industrial meaning to that term that derived from the industrial history and context of clauses in industrial and legislative instruments that dealt with casual employment. He argued that the industrial context and history of such clauses demonstrated that casual employment arose where an employee was engaged and paid as a casual employee. He argued that when considering the term “casual employee” in the Fair Work Act that term ought to be approached on the basis that it meant an employee who was engaged and paid as such and nothing more. He suggested that the approach taken in cases like MacMahon Mining Services and the cases referred to therein was inappropriate having regard to the way in which casual employment was traditionally defined in industrial instruments and awards.
Further, in accordance with that “industrial meaning”, casual employees are not usually entitled to annual leave absent statutory modification. The Fair Work Act does not depart from this position. In fact, he argued, s.86 explicitly excludes “casual employees” from entitlements under the annual leave division of Part 2-2 of the Act.
Senior counsel for the respondent argued that the Court should avoid allowing an employee to “double dip” by seeking entitlements the value of which are commensurate with or compensated by a casual loading or increased flat rate. Finally, the respondent argued that the Fair Work Act should be read consistently with an industrial agreement such as that which exists in the present, as a matter of policy.
In support of the approach urged upon me by the respondent, senior counsel for the respondent referred me to Re Metal, Engineering & Associated Industries Award (2000) 110 IR 247 where the Full Bench of the Industrial Relations Commission observed (at p. 273) that the expressions “casual worker” and “casual employment” do not “appear to have any common law foundation…” The respondent also referred me to academic commentary to the effect that the phrase “casual employee” has no fixed meaning and that “occasional and irregular work” are not determinative of this type of employment. Senior counsel for the respondent did acknowledge, however, the wealth of authority that exists from “industrial decision-making bodies” on the meaning of “casual employment”. In this context, senior counsel for the respondent preferred the term “industrial meaning” when discussing the expression “casual employment”.
The respondent draws upon two cases in particular from which it is said, I should derive the relevant principles. The first is the Metals Casuals case to which I have just referred. The other is Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 where the Full Bench of the Fair Work Commission explained how cases such as the Metal Casuals case resulted in decisions that employees working regular and systemic hours on an ongoing basis could still be “casual employees” under relevant awards. The Full Bench stated that by the time of the Award modernisation of this country’s industrial law, many Awards deemed employees to be casual employees if they were merely (a) identified as casual at the time of engagement and (b) paid a casual loading.
Senior counsel for the respondent also referred to Telum and the Metal Casuals case as decisions which have rejected attempts to restrict the industrial meaning of casual employment. In the Metal Casuals case, for example, the Full Bench rejected an argument that the definition of casual employment under a relevant Award should be restricted to employment that is short term, emergency in nature, or which cannot practicably be rostered to permanent employees.
However, the approach to the determination of whether, as a matter of the contract between the parties, Mr Skene’s employment with the respondent was casual in my view falls to be determined according to the approach described in MacMahon and the cases there cited. In my view there is no warrant to interpret the phrase casual employee in s.86 of the Fair Work Act in a way that draws upon the definitional provisions of various industrial instruments according to the “industrial history” of those instruments.
Here, the evidence is that Mr Skene’s employment at Clermont Mine was:
a)regular and predictable. His working arrangements and shifts were set 12 months in advance in accordance with a stable and organised roster;
b)his employment was continuous, save for one period of seven days that went unpaid but which was arranged with the respondent’s client. For that purpose, Mr Skene was under the direction and control of the client, not the respondent (see cl.5.7 of the general terms and conditions);
c)his employment was facilitated by the fly in, fly out arrangement and the provision of accommodation at no cost to himself;
d)the fly in, fly out arrangement was inconsistent with the notion that Mr Skene could elect to work on any day and not work for others without first making the necessary arrangements with the respondent’s client;
e)there was plainly an expectation that Mr Skene would be available, on an ongoing basis, to perform the duties required of him in accordance with his roster, until such time as the assignment was complete: cl.5.4 of the general terms and conditions; and
f)the evidence suggests that the work undertaken by Mr Skene was not subject to significant fluctuation from one day, or one week, or one month, or one year to the next. The hours of work were regular and certain as revealed by Mr Skene’s pay slips.
Each of those matters weighs in favour of Mr Skene’s employment being seen as something other than casual. However:
a)Mr Skene was paid by the hour and accounted for his time through timesheets submitted on a weekly basis;
b)His employment was determinable upon one hour’s notice;
c)His employer designated his employment as casual and Mr Skene seemingly was aware of and accepted that.
Each of those matters supports the proposition that Mr Skene was a casual employee.
There was also evidence from the respondent’s witnesses about the turnover of workers at the Clermont Mine. Ms Gray gave evidence that workers regularly ceased working at the site of their own motion or at Rio Tinto’s instigation. She was frequently required to fill positions of workers who had left their employment at Clermont Mine. However, there is no evidence at all, that workers would choose which days of their roster periods they would work or not work. There was no element of choice in the daily working arrangements during the course of Mr Skene’s employment at Clermont Mine. There was no opportunity for him to choose not to work any particular shift or hours offered to him by the respondent. It was not suggested that he could choose to work for some periods of seven days performing work according to his roster, but not other weeks, without special arrangements.
I am persuaded that Mr Skene should be seen as other than a casual employee for the purposes of s.86 of the Fair Work Act. The essence of casual employment, as described by the Full Federal Court in Hamzy v Tricon International Restaurants (2001) 115 FCR 79 and applied in MacMahon, is missing. There is no absence of a firm advance commitment as to the duration of Mr Skene’s employment or the days (or hours) he would work. Those matters were all clear and predictable. They were set 12 months in advance.
Conclusion
Although Mr Skene does not establish an entitlement to annual leave pursuant to cl.19.1.1 of the WorkPac Agreement, he does establish an entitlement to benefits pursuant to Div. 6 of Part 2-2 of the Fair Work Act.
In final submissions, senior counsel for the respondent submitted that the amount to which Mr Skene would be entitled by way of compensation was unlikely to be the subject of dispute even though on the material before me there was a dispute about that matter. He suggested that in the event that I determined that Mr Skene was entitled to compensation, the matter should be left to the parties to agree that figure. I intend to adopt that course.
Further, he suggested that his client ought to be given the opportunity to make further submissions about the pecuniary penalties that might be imposed upon his client in the event that Mr Skene’s application was successful. I intend that course as well.
In those circumstances, I publish these reasons and make the orders in other directions set out at the commencement hereof.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 November, 2016.
Date: 24 November, 2016
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