Skene v WorkPac Pty Ltd (No.2) - [2017] FCCA 525

FEDERAL CIRCUIT COURT OF AUSTRALIA

SKENE v WORKPAC PTY LTD (No.2)

[2017] FCCA 525

Catchwords:
INDUSTRIAL LAW – Assessment of compensation for failure to pay accrued annual leave entitlements upon termination of employment – base rate of pay – ordinary hours of work.

INDUSTRIAL LAW – Assessment of penalty for failure to pay accrued annual leave entitlements upon termination of employment – where both partiers intended employment to be casual.

WORDS AND PHRASES – base rate of pay.

WORDS AND PHRASES – ordinary hours of work.

Legislation:

Fair Work Act 2009 (Cth), ss.16, 18, 44, 81(2), 87, 90, 99, 106, 111(2), 116, 117(2)(b), 119(2), 206, 546(3), 547, Div. 6, Part 2-2
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), it. 33, Sch. 3
Military Rehabilitation and Compensation Act 2004 (Cth), s.171
Safety, Rehabilitation and Compensation Act 1988 (Cth), s.8
Workers Compensation Act 1988 (Tas.)
Workplace Relations Amendment (Work Choices) Act 2005 (Cth), Sch. 1, s.92D(2)

Cases cited:

Automotive, Food, Metals Engineering, Printing and Kindred Industries Union v Mechanical Engineering Services Pty Ltd (No.2) (2008) 175 IR 351

Catlow v Accident Compensation Commission (1989)167 CLR 543

Centennial Northern Mining Services Pty Ltd v CFMEU (2015) 231 FCR 298

CEPU of Australia v CJ Manfield Pty Ltd (2011) 63 AILR 101-370
Higgins v Australian Commercial Catering Pty Ltd [2015] FCCA 346
MacMahon Mining Services Pty Ltd v Williams (2010) 201 IR
Maughan Thiem Auto Sales Pty Ltd v Cooper (2014) 22 FCR 1
Scott v Sun Alliance Australia Ltd (1994) 178 CLR 1
Skene v Workpac Pty Ltd [2016] FCCA 3035

Applicant:

PAUL ALEXANDER SKENE

Respondent:

WORKPAC PTY LTD

File Number:

BRG 457 of 2014

Judgment of:

Judge Jarrett

Hearing date:

17 March 2017

Date of Last Submission:

17 March 2017

Delivered at:

Brisbane

Delivered on:

20 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Reed

Solicitors for the Applicant:

Slater & Gordon Lawyers

Counsel for the Respondent:

Mr Wood of Queens Counsel with Mr Haddrick

Solicitors for the Respondent:

Clarkekann Lawyers

ORDERS

Within 28 days of the date of these orders, the respondent pay to the applicant $27,789.72 comprising:
(a)$21,054.69 by way of compensation; and
(b)$6,735.03 by way of interest on that compensation calculated to the date of these orders.
Otherwise, all outstanding applications are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 457 of 2014

PAUL ALEXANDER SKENE

Applicant

And

WORKPAC PTY LTD

Respondent

REASONS FOR JUDGMENT

On 24 November, 2016 I delivered reasons for determining that Mr Skene, although employed pursuant to a contract of employment in a nominated capacity as a “casual”, was nonetheless entitled to be paid annual leave because he was not a casual employee for the purposes of s.87 of the Fair Work Act2009 (Cth): Skene v Workpac Pty Ltd [2016] FCCA 3035.
Mr Skene had been employed with WorkPac at Rio Tino’s Clermont Mine from 20 July, 2010 to 23 April, 2012. During that time he did not take any paid annual leave and he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Skene v WorkPac Pty Ltd (No.2)

Details

AGLC: Skene v WorkPac Pty Ltd (No.2) [2017] FCCA 525
Case: [2017] FCCA 525
Decision Date: 20 March 2017

CaseChat Overview and Summary

Skene v WorkPac Pty Ltd (No.2) concerned a dispute between Ms Skene and WorkPac Pty Ltd regarding the assessment of compensation for unpaid annual leave entitlements upon the termination of Ms Skene's employment. The matter was heard by Judge Jarrett in the Federal Court of Australia.

The primary legal issues before the Court were how to assess the "base rate of pay" for the purpose of calculating accrued annual leave entitlements, and whether the "ordinary hours of work" were relevant to this calculation. The Court was also required to consider the implications of the parties' intention for the employment to be casual when assessing penalties for the failure to pay these entitlements.

Judge Jarrett determined that the "base rate of pay" for the purpose of calculating annual leave entitlements should be determined by reference to the employee's actual earnings, rather than a hypothetical rate that might apply to a permanent employee. The Court reasoned that the purpose of annual leave is to provide a paid break from work, and therefore the calculation should reflect the employee's actual remuneration. The Court also found that the concept of "ordinary hours of work" was not applicable to casual employees for the purpose of calculating accrued annual leave, as casual employees do not accrue such leave in the same way as permanent employees.

The Court ordered WorkPac Pty Ltd to pay Ms Skene compensation for her accrued annual leave entitlements, calculated on the basis of her actual earnings.

Orders