Tomvald v Toll Transport Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Tomvald v Toll Transport Pty Ltd [2017] FCA 1208

File number:

NSD 1255 of 2016

Judge:

FLICK J

Date of judgment:

12 October 2017

Catchwords:

INDUSTRIAL LAW – nature of employment – permanent or casual employment – test to be applied when considering whether an employee is permanent or casual – whether the focus should be on the substance of employment or the terms of engagement – employee was both engaged as a casual employee and employment had the character of casual employment

INDUSTRIAL LAW – right to convert to permanent employment – notification of dispute – whether industrial instrument confers right to convert – principles of interpretation of industrial instruments – instrument confers right to convert on “like for like” basis – “like for like” to be given a practical meaning in the context of the relevant industry – right to convert to full-time permanent employment for 38 hours per week – contravention of s 50 of the Fair Work Act 2009 (Cth)

INDUSTRIAL LAW – adverse action – allegation of adverse action in capping hours and changing start time – reverse onus of proof – where company made commercial decision to reduce labour costs – the exercise of workplace rights played no part in the capping of hours or change of start time

INDUSTRIAL LAW – claim for compensation – calculation of quantum of compensation – interest on compensation

INDUSTRIAL LAW – imposition of penalties – principles in determining penalties – penalties to be paid to the Applicant

Legislation:

Conciliation and Arbitration Act1904 (Cth) s 5(4)

Evidence Act1995 (Cth) s 140

Fair Work Act2009 (Cth) ss 50, 191, 340, 341, 343, 345, 346, 355, 360, 361, 535, 545, 546, 557, 570

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 43

Industrial Relations Act1988 (Cth)

Workplace Relations Act1996 (Cth) s 353A

Fair Work Regulations2009 (Cth) regs 3.32, 3.33, 3.34, 3.42, 3.43

Industrial Relations Regulations (Cth) r 30B

Workplace Relations Regulations1996 (Cth) Pt 9A

Cases cited:

Australian Building and Construction Commissioner v Hall [2017] FCA 274

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294, (2002) ATPR ¶41-901

Australian Competition and Consumer Commission v Singapore Airlines Cargo Pte Ltd [2009] FCA 510, (2009) 256 ALR 458

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8, (2008) 165 FCR 560

Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477

Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291, (2013) 239 IR 363

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500

Briginshaw v Briginshaw (1938) 60 CLR 336

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813, (2006) 153 IR 426

Commonwealth v Director, Fair…

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Details
Case
[2017] FCA 1208
Decision Date

CaseChat Overview and Summary

The case of Tomvald v Toll Transport Pty Ltd involved the employee, Mr Tomvald, who sought to establish that his employment was of a permanent nature rather than casual. He also sought conversion to a permanent position, compensation for adverse action taken by the employer, and penalties for contraventions of the Fair Work Act 2009 (Cth). The central legal issues were whether Mr Tomvald was engaged as a casual or permanent employee, if there was a right to convert to permanent employment, if there was adverse action taken against him, and the quantum of compensation and penalties owed. The court found that Mr Tomvald was indeed engaged as a casual employee, his employment had the character of casual employment, and he remained a casual employee throughout. Despite this, he had a right to convert his employment to a permanent position on a "like for like" basis, which the employer failed to do. Additionally, the court determined that there was no adverse action taken against Mr Tomvald, as the decisions to cap his hours and change his start time were based on commercial considerations unrelated to the exercise of his workplace rights. The court ordered that penalties be paid to Mr Tomvald for various contraventions of the Fair Work Act and that compensation be awarded. The court also granted declaratory relief in respect of the contraventions found. The final orders required the parties to agree on the quantum of compensation or, in the event of failure to agree, to outline the matters of disagreement. Additionally, the court reserved the right for either party to re-list the matter within 48 hours’ notice.

Orders

Orders of the court

1. The parties are to file and serve within fourteen days a table setting forth either:

(i) an agreed quantum of compensation to be payable to Mr Tomvald;

or, in the event of a failure to agree:

(ii) a table setting forth the matters upon which there is disagreement and the reasons for any disagreement.

2. Subject to Order 1, the parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.

3. Liberty is reserved to either party to have the matter re-listed on 48 hours’ notice in writing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

But it is unnecessary to resolve the extent to which there is any divergence in the approaches pursued by these decisions. On the facts of the present case, it is concluded that Mr Tomvald:·was “engaged” as a casual employee; ·his employment had the character of casual employment; and·he remained throughout employed as a casual employee. Whichever approach is pursued the result is the same: subject to his right to “convert”, Mr Tomvald was and remained a “casual” employee. He was initially “engaged” as a casual and, notwithstanding the length of his employment, he remained a “casual” employee. The facts – the terms of engagement & the work performed There is no document which unequivocally records the basis upon which Mr Tomvald was engaged either as at:·2007 by Toll Personnel Pty Ltd; or·1 July 2015 by Toll Transport. However, a letter dated 26 May 2015 from the Toll Group advised Mr Tomvald of the change in the identity of his employer from Toll Ipec Pty Ltd to Toll Transport. That letter attached a document headed “Payroll Transfer Project – Q&As” which stated in part as follows (without alteration):What will be the impact on employees?There will be no negative impact on employees. In particular:1.Employees’ terms, conditions of employment and all leave entitlements will not change. The same enterprise agreements, awards and contracts of employment will continue to apply. No change to these aspects will occur as a result of the change in employer. 2.There will be no change to an employee’s duties or place of work.3.Your new legal entity employer will recognise employees’ prior service with their current employer for all purposes.4.Your new legal entity employer will take on all of accrued leave entitlements, including personal leave.5.Your new legal entity employer will recognise any leave arrangements for which approval has been obtained prior to 1 July 2015.In short, it will be “business as usual”. The only change will be the name of a person’s employer.Prior to that letter, it would appear that Mr Tomvald was employed by Toll Ipec Pty Ltd. There was, however, no document before the Court which recorded the basis upon which Mr Tomvald was employed by Toll Ipec Pty Ltd. An earlier letter dated 11 October 2012 does, however, records an offer to appoint Mr Tomvald as a “Freight Handler on a casual basis with Toll Pty Ltd”. That letter continued on to state:1.Terms of Engagement and Duties1.1You are engaged as a casual employee and your responsibilities are set out in the position description in the attached Schedule.1.2You will be employed by the hour and each engagement will constitute a separate contract of employment on the same terms and conditions as are set out in this document. Starting and finishing times are to be agreed with Toll and are established to suit the operational requirements of Toll. 1.3Your employment as a casual employee may be terminated at the conclusion of your rostered engagement by the provision of notice of such termination at the earliest possible opportunity or by the paying of an amount equivalent to the pay for that rostered engagement. Nothing in this Agreement shall affect the legal right of Toll to terminate your employment without notice or pay in lieu of notice if you are guilty of misconduct, or dishonesty, or persistently or materially breach the terms and conditions of your employment or commit any other act or omission which justifies summary termination. 1.4You will perform all acts, duties and obligations usually associated and consistent with your job title and position description and comply with all lawful directions given to Toll. Toll may assign you to undertake the duties of another position, either in addition to or instead of your normal duties, it being understood that you will not be required to perform duties which are not reasonably within your capabilities. In addition, Toll may require you (as part of your duties of employment) to perform duties or services for any related body corporate where such duties or services are of a similar status to or consistent with your position with Toll. If there is a change in your position or in your responsibilities, your terms and conditions of employment will remain the same except where specific variations are agreed.That offer was accepted by Mr Tomvald on 17 October 2012.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appropriate order in the present proceeding is that there should be no order as to costs.CONCLUSIONS It has been concluded that the following contraventions have been made out and that penalties totalling $42,500 should be imposed:·contravention 2: failure to provide employee records on request;·contraventions 5 & 6: failure to consult in respect to the capping of hours and the changing of start times;·contravention 7: the misrepresentation of Mr Selig’s ability to represent Mr Tomvald; and·contravention 9: failure to convert Mr Tomvald’s employment from casual to permanent on a “like-for-like” basis. It is further concluded that such penalties should be paid to Mr Tomvald. Compensation should also be paid to Mr Tomvald pursuant to s 545(2)(b) of the Fair Work Act. The Cross-Claim should be dismissed. Declaratory relief should also be granted in respect to those contraventions that have been made out. There should be no order as to costs. THE ORDERS OF THE COURT ARE:(1)The parties are to file and serve within fourteen days a table setting forth either:(i)an agreed quantum of compensation to be payable to Mr Tomvald; or, in the event of a failure to agree;(ii)a table setting forth the matters upon which there is disagreement and the reasons for any disagreement.(2)Subject to Order 1, the parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.(3)Liberty is reserved to either party to have the matter re-listed on 48 hours’ notice in writing.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.