Tony John Sacchetta v GrainCorp Limited
[2022] FWC 2339
•13 SEPTEMBER 2022
| [2022] FWC 2339 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Tony John Sacchetta
v
GrainCorp Limited
(C2022/5281)
| COMMISSIONER YILMAZ | MELBOURNE, 13 SEPTEMBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Introduction
On 27 July 2022, Mr Tony Sacchetta lodged an application under s.66M of the Fair Work Act 2009 (the Act) in relation to a dispute over casual conversion with his employer GrainCorp Limited (GrainCorp). Mr Sacchetta states that the dispute concerns s.66B(1)(b) of the Act, whether the employee worked a regular pattern of hours on an ongoing basis which could convert to full-time, and ss.66C and 66H, whether the employer had reasonable grounds to not offer casual conversion or to refuse a request for casual conversion.
Mr Sacchetta is a casual bulk grain worker at the Geelong terminal and has worked for GrainCorp since 29 March 2021. His classification of work is covered by the GrainCorp Operations Ltd. (Sunshine, Portland & Geelong) and United Workers’ Union Enterprise Agreement 2019[1] (the Agreement). The Agreement does not contain a casual conversion clause, however, clause 14 is the disputes settlement provision in relation to the terms of the Agreement and the National Employment Standards (NES).
On 27 March 2021 amendments to the Act came into effect, introducing a new NES in Division 4A of Part 2-2 that requires employers to offer eligible casual employees conversion to weekly employment. Section 66B provides that unless the employer has reasonable grounds, it must offer a casual employee the opportunity to convert if the employee has been employed for 12 months, during the last 6 months has worked a regular pattern of hours on an ongoing basis and without significant adjustment, the employee could continue to work full-time or part-time.
Settlement of disputes in relation to the NES casual conversion provision can be dealt with under the procedure in an industrial instrument such as an award or enterprise agreement or an employee’s contract of employment. Where there is no industrial instrument or contract of employment with a dispute settlement clause, s.66M of the Act provides for conciliation by the Commission and arbitration, if the parties agree.
Application of the correct Agreement was confirmed by the parties, which contains a dispute settlement procedure in relation to matters concerning the NES. Prior to commencement of the hearing, both parties agreed to an amendment to the application to reflect a dispute subject to s.739 of the Act in place of s.66M. Pursuant to s.586 of the Act, I am satisfied that I may allow the amendment and consider it appropriate to amend Mr Sacchetta’s application. Further, I am satisfied that the amendment does not fundamentally change the nature of the application. The matter was heard on 30 August 2022 and the parties were self-represented.
Factual Background to the dispute
It is not in dispute that Mr Sacchetta is a casual employee as defined in s.15A of the Act, that he accepted employment on that basis and remains a casual employee.
Further, it is not in dispute that Mr Sacchetta is a regular casual employee.
Having commenced employment with GrainCorp on 27 March 2021, Mr Sacchetta had been employed for more than 12 months when on 8 April 2022 GrainCorp conducted a review of hours worked for the six-month period of October 2021 to March 2022.
On 14 April 2022, Mr Sacchetta was informed that GrainCorp would not be making an offer of casual conversion to permanent employment on the basis that he had “not worked a regular pattern of hours for the entirety of the last 6 months” of his employment.[2]
On 26 April 2022, Mr Sacchetta disputed the decision to not offer permanent employment and sought a review.
On 4 May 2022 Mr Sacchetta was informed that the review concluded, and the result was that the initial decision stands. A telephone conversation followed between Mr Sacchetta and Human Resources. On 10 and 11 May 2022, further email communication was exchanged between Mr Sacchetta and GrainCorp. Mr Sacchetta was referred to the Agreement dispute settlement clause and the FWO casual employment information statement. Over June and July 2022 Mr Sacchetta sought assistance from management which failed to resolve the dispute to his satisfaction, resulting in this application.
Provisions of the Agreement and legislative framework relevant to the dispute
The dispute settlement clause in the Agreement relevantly provides:
“14. PROCEDURES FOR THE AVOIDANCE OF INDUSTRIAL DISPUTES
14.1Any dispute or claim (whether any such dispute or claim that arises out of the National Employment Standards (NES), the operation of this Agreement or not) as to the wages or conditions of employment of any and its employees shall be settled in the following manner:
14.1.1The matter shall first be discussed between the aggrieved employee and his/her supervisor.
14.1.2If settlement is not reached the matter shall be discussed between the employee and his/her representative, which can be a site union delegate, and the site manager or other appropriate officer of the Company.
14.1.3If not settled the matter shall then be discussed between a more senior employee representative such as the Union’s site Organiser and the appropriate representative of the Company.
14.1.4If agreement is not reached, the matter may then be discussed between a representative of the head of the office of the company and the State Secretary of the Union where appropriate.
14.1.5If the matter is still not settled it shall be submitted to the Fair Work Commission (FWC), for conciliation and if necessary, arbitration.”
No concern was raised regarding the application of clause 14 and I am satisfied that the Commission can deal with the dispute by way of arbitration.
The relevant NES provision is s.66B of the Act in respect to employer offers for casual conversion. The relevant provision provides:
“(1)Subject to section 66C, an employer must make an offer to a casual employee under this section if:
(a)the employee has been employed by the employer for a period of 12 months beginning the day the employment started; and
(b)during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be).
Note: An employee who meets the requirements of paragraphs (a) and (b) would also be a regular casual employee because the employee has been employed by the employer on a regular and systematic basis.”
Mr Sacchetta asserts that GrainCorp’s reasons for not making the offer may be due to s.66C or s.66H of the Act. GrainCorp did not make any substantive submissions relying on either ss.66C or 66H. However, as an offer for conversion was not made s.66C is applicable. Relevantly, s.66C of the Act provides:
“When employer offers not required
(1)Despite section 66B, an employer is not required to make an offer under that section to a casual employee if:
(a) there are reasonable grounds not to make the offer; and
(b)the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.
(2)Without limiting paragraph (1)(a), reasonable grounds for deciding not to make an offer include the following:
a) the employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;
b) the hours of work which the employee is required to perform will be significantly reduced in that period;
(c) there will be a significant change in either or both of the following in that period:
(i)the days on which the employee’s hours of work are required to be performed;
(ii)the times at which the employee’s hours of work are required to be performed;
which cannot be accommodated within the days or times the employee is available to work during that period;
(d)making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.
(3) An employer must give written notice to a casual employee in accordance with subsection (4) if:
(a)the employer decides under subsection (1) not to make an offer to the employee; or
(c)the employee has been employed by the employer for the 12 month period referred to in paragraph 66B(1)(a) but does not meet the requirement referred to in paragraph 66B(1)(b).
Note: If an employer fails to give notice to a casual employee, the employee has a residual right to request conversion to full-time or part-time employment in certain circumstances: see Subdivision C.
(4) The notice must:
(a)advise the employee that the employer is not making an offer under section 66B; and
(b)include details of the reasons for not making the offer (including any grounds on which the employer has decided to not make the offer); and
(c)be given to the employee within 21 days after the end of the 12 month period referred to in paragraph 66B(1)(a).
Section 66H concerns the grounds for an employer’s refusal to grant an employee’s request for casual conversion. The provision has some consistency with s.66C in respect to the grounds to refuse. As this application concerns an assessment by GrainCorp of Mr Sacchetta’s entitlement to casual conversion and its decision on its own motion, I do not consider it necessary to consider s.66H of the Act in this matter.
The Agreement contains relevant clauses distinguishing weekly with casual employees. Clause 16.1.3 makes clear that a weekly employee entitled to a weekly wage shall be available, ready and willing to perform his or her usual work during the days and hours usually worked by such class of employee. Clause 16.2 relates to part-time work and provides a minimum guarantee of 16 hours and a maximum of 40 ordinary hours per week including rostered day off accrual. Casual employment provisions contained within clause 16.4 provide that a guaranteed minimum number of hours of work per engagement will be 4, that casuals are supplementary labour dependent on the cyclical nature of the business and to cover labour shortages and that in addition to a 20% loading in lieu of entitlements, casuals are entitled to penalties associated with overtime (clause 19), Sunday work (clause 19.1.7) and public holiday penalty rates (clause 37.4).
The set ordinary hours worked by a weekly employee is covered by clause 17, which relevantly provides:
“17.1 Spread of Hours
The spread of ordinary hours Monday to Friday, both inclusive, shall (except for shift work) be as follows, unless, otherwise outlined in this Agreement:
Site Spread of Hours
Geelong 6.00 am - 7:00 pm
Portland 6.00 am - 7:00 pm
Sunshine 6:00 am - 7:00 pm17.2 Ordinary Hours of Work
The ordinary hours of work shall be 38 per week plus two additional hours per week to be worked as follows:
17.2.1 Ordinary working hours shall be worked as a twenty-day four-week cycle of eight hours each on Monday to Friday inclusive between the spread of hours in clause 17.1 (spread of hours) above, with 0.4 of an hour of each day worked accruing as an entitlement to a rostered day off in each cycle.
17 .2.2 Taking of RDOs will be in a totally flexible manner to allow the uninterrupted operation of the terminal. Employees will defer RDOs whenever necessary to avoid penalising terminal operations.”
Submissions of the parties
Mr Sacchetta submits that the reason given for not offering casual conversion was, “you have not worked a regular pattern of hours for the entirety of the last 6 months of your employment”, and he submits that the reason is in error of the interpretation of s.66B of the Act in terms of what constitutes a ‘regular and systematic pattern of hours’. Mr Sacchetta also states that GrainCorp made an error in calculating his ordinary hours of work, that it failed to take into account the circumstances affecting his shifts during the work cycle and that in making its decision to refuse conversion, that it failed to conduct a proper review and failed to be transparent in its decision.[3]
In respect to the relevance of the Agreement provisions concerning the spread of hours and ordinary hours, Mr Sacchetta says that the amendments to the Act for casual conversion nullifies the Agreement clauses and the relevant consideration is that he had satisfied the requirement of working for GrainCorp more than 12 months, that he is rostered daily and works the rotational shifts as are all other bulk grain workers including weekly workers, he has had no indication of his work concluding and he has worked the same pattern of work as other permanent employees.
Specifically concerning the pattern of hours worked, Mr Sacchettta says that GrainCorp has erroneously calculated his hours and misinterpreted “regular pattern of hours” in s.66B9(1)(b) to mean “ordinary hours” or the hours paid at ordinary rates.[4] Instead, Mr Sacchetta asserts the correct view is to compare total number of hours worked over the minimum 5-6 days in a week.
In relation to the six month period assessed, Mr Sacchetta acknowledges that there was a shortfall in an average of full-time hours of 2.5 minutes per shift, when considering his total hours worked, however, the reasons for his inability to have met the hours is due to matters beyond his control for instance public holidays, shutdown of the terminal, being allocated ‘FINISH” shifts which result in earlier finish times which may affect casual hours of work by 3-4 hours, the Agreement provides priority of offers of overtime to weekly employees, training time and unpaid sick leave.
Mr Sacchetta drew my attention to the Explanatory Memorandum[5] which provides guidance in regard to the term “regular pattern of hours” and that even with fluctuations or variation in the specific times and days worked or with time away from work would, he says, deem his hours as regular and systematic for the purpose of casual conversion.[6] Mr Sacchetta also referred to Toby Priest v Flinders University of South Australia,[7] where the Commission found the regular pattern of work met the requirement of s.66B(1)(b).
Mr Sacchetta contends that GrainCorp’s assessment of hours is in error because it only considered ordinary hours of work, while he submits that “regular pattern of hours should be read more broadly.[8] He further submits that s.66C is irrelevant in this matter.[9]
GrainCorp submit that the NES casual conversion should be read in conjunction with the Agreement and the NES does not depose provisions concerning ordinary hours of work, roster provisions or conditions relating to full-time or casual workers.
It submits that it had assessed Mr Sacchetta’s hours of work in April taking into account the last six-month period and found that he had not worked “a regular pattern of hours” for the entirety of the period. [10] It determined that a regular pattern of hours could not be identified because a significant adjustment would be required to meet the definition and terms of the Agreement.[11] GrainCorp contends that it is not correct that the Agreement terms and conditions become irrelevant, rather a casual conversion needs to be considered in the context of the Agreement terms and this is a criteria of the Act in regard to assessment of significant adjustment.
GrainCorp tendered in evidence a payroll record of Mr Sacchetta’s ordinary hours of work for the period of the assessment.[12] That record shows that in the 24-week period, the pattern of work satisfied 50% of the time as consistent with a pattern for a full-time employee. The balance of period reflects the nature of casual employment which in Mr Sacchetta’s case included days that he was unavailable, and the rostering met operational requirements in so far as shifts allocated were supplementary to weekly employee shift allocations within ordinary hours. It is not denied that Mr Sacchetta had worked significant overtime as a casual, however, it states that his willingness to work these hours cannot be considered when determining if a casual conversion would be without significant adjustment.[13]
In response to Mr Sacchetta’s submissions that GrainCorp had not considered shutdowns, public holidays, training and sick leave, it denies this and states that the record shows that it had considered public holidays in the comparison, training is counted as time worked, there was no shutdown in the period and the personal leave was reflective of a casual employee’s unavailability. It further states that the period of unavailability for reasons of sick leave would not satisfy the requirements of a full-time employee. In respect to the alleged shutdown, GrainCorp confirmed that the day was in fact Geelong Cup which is a union picnic day covered by the Agreement. I observe that from the roster, that minimal staff were scheduled to work and did not include any allocated hours for Mr Sacchetta.
Consideration and conclusion
The NES requires an employer to make an offer where certain conditions are met. It is not in dispute that Mr Sacchetta met the 12-month period of employment. However, s.66B(1)(b) requires that the employee in the last six months to have worked a regular pattern of hours on an ongoing basis. Further, that the pattern on an ongoing basis would without significant adjustment to allow the employee to work full-time. It is this provision that is in dispute between the parties. While the meaning comes from the text, their plain meaning is to be considered in context. This means that the NES is to operate in the context of the applicable industrial instrument and not in isolation. In this matter, the Agreement applies and the regular pattern of work on an ongoing basis, without significant change is to be considered in context of the pattern of work required by the Agreement.
In his submissions, Mr Sacchetta refers to a “regular and systematic pattern of hours” to contend that he has met the NES requirement for conversion. His use of the words “regular and systematic pattern of hours” is not consistent with the reference to patterns of hours within s.66C. The reference to the term “systematic” is used in the context of the note which states that an employee that meets the requirements of paragraphs (a) and (b) of s.66C would also be a regular casual employee because they had been employed on a regular and systematic basis. The note concerns the basis for a casual employee to be considered employed on a regular and systematic basis and eligible for casual conversion. It is not in dispute that Mr Sacchetta is employed as a casual on a regular and systematic basis over a period of 12 months. He had worked weekly, albeit there have been fluctuations in the hours and in his availability. However, the principal provision relevant to this dispute is s.66B(1)(b).
The pertinent question in this matter is whether Mr Sacchetta worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee.
The evidence shows us that the hours worked over the 24-week assessment period met the pattern of a full-time employee for 50% of the time and for the balance of the period the pattern of work would require adjustment to meet the requirements of the Agreement for a full-time employee. The table below demonstrates that Mr Sacchetta worked, on average, 35.74 ordinary hours per week and an average of 20.96 hours of weekly overtime hours and that he met the requirements of a full-time weekly ordinary hours for only half of the time throughout the 24-week period:
| Pay period | Total ordinary hours per week | Overtime worked per fortnight |
| 27 September 2021 to 3 October 2021 | 40 | 55.58 |
| 4 October 2021 to 10 October 2021 | 40 | |
| 11 October 2021 to 15 October 2021 | 39.33 | 27.8 |
| 18 October 2021 to 24 October 2021 | 32 | |
| 25 October 2021 to 29 October 2021 | 32 | 15.15 |
| 1 November 2021 to 7 November 2021 | 32 | |
| 8 November 2021 to 12 November 2021 | 38.1 | 24.65 |
| 15 November 2021 to 21 November 2021 | 40 | |
| 22 November 2021 to 26 November 2021 | 32 | 22.33 |
| 29 November 2021 to 5 December 2021 | 32 | |
| 6 December 2021to 10 December 2021 | 40 | 39 |
| 13 December 2021to 19 December 2021 | 32 | |
| 20 December 2021to 24 December 2021 | 40 | 73 |
| 27 December 2021to 2 January 2022 | 24 | |
| 3 January 2022 to 7 January 2022 | 24 | 66.75 |
| 10 January 2022 to 16 January 2022 | 40 | |
| 17 January 2022 to 21 January 2022 | 40 | 82.65 |
| 24 January 2022 to 30 January 2022 | 36 | |
| 31 January 2022 to 3 February 2022 | 40 | 47.08 |
| 7 February 2022 to 13 February 2022 | 40 | |
| 14 February 2022 to 18 February 2022 | 32 | 37.82 |
| 21 February 2022 to 27 February 2022 | 38 | |
| 28 February 2022 to 4 March 2022 | 36.4 | 11.13 |
| 7 March 2022to 13 March 2022 | 37.87 | |
| Average weekly ordinary hours | 35.74 | |
| Average weekly overtime hours | 20.96 | |
Whether the adjustment to meet the Agreement provisions is significant again needs to be considered in context of the Agreement and the workplace. GrainCorp relies on a core full-time and part-time workforce and casual labour is engaged both directly and through labour hire to supplement the operational requirements. Operational requirements of the business are impacted by harvests, demand for its services in receipt, storage and export of grain, timing of deliveries, obligations to meet the Agreement provisions for weekly employees, fatigue management and other operational demands. Casual labour is therefore supplementary and sufficiently flexible to meet fluctuations in labour requirements. Given this context, Mr Sacchetta’s pattern of hours closely resembles casual employment to meet operational requirements for 50% of his working hours. This means the adjustment to 50% of Mr Sacchetta’s pattern of hours would be significant to convert to full-time.
For these reasons I find that GrainCorp had reason to not offer casual conversion to full-time. Section 66C provides that an offer need not be made where there are reasonable grounds, based on facts known at the time of deciding not to make the offer. It is clear from s.66C(2) that the reasons are not limited by those expressed in s.66C(2)(a)-(d). The reason for not converting to full-time in Mr Sachetta’s instance falls within the requirements of s.66C.
I do observe that Mr Sacchetta indicated in his submissions that as an alternative, his hours of work should be considered in the context of part-time work. The pattern of hours in this case would not require a significant adjustment, however, consideration of any impact on restrictions on overtime may be required. I also observe that in response to questions about part-time work, both Mr Sacchetta and Grain Corp indicated a preparedness to have discussions whether it would be a viable solution to the dispute.
While I have not found that Mr Sacchetta has met the requirements of s.66C for the purpose of conversion to full-time employment, I am of the view given that both parties have agreed to consider whether conversion to part-time employment would be an agreeable option, it would be favourable for the parties to have this discussion directly. While Mr Sacchetta indicated desirability for permanency in employment, should conversion to part-time be genuinely considered, this decision may impact his current pattern of overtime hours worked. It is in Mr Sacchetta’s interests that he consider any implications to his hours of work if he converts to part-time, he may also in the alternative consider options to convert to full-time if his hours were to resemble the hours of a full-time employee. In any event, Mr Sacchetta should consider his options subject to the terms of the Agreement. For these reasons it is advisable that the parties have this discussion directly with the view of reaching agreement in the first instance.
COMMISSIONER
Appearances:
Mr T.J Sacchetta on his own behalf.
Mr D. Clarkson for the Respondent
Hearing details:
2022
Melbourne
30 August 2022
[1] AE507106.
[2] Exhibit A1 witness statement of Mr Sacchetta, attachment TJS-2, and attachment to Respondent’s outline of submissions.
[3] Exhibit A1, witness statement of Mr Sacchetta, Applicant’s outlie of submissions and form F10.
[4] Applicant’s outline of submissions at [1(h)(ii)].
[5] Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 Revised Explanatory Memorandum at [27] – [28].
[6] Applicant’s outline of submissions at [34].
[7] [2022] FWC 478 at [51].
[8] Applicants outline of submissions at [42] - [43].
[9] Applicant’s outline of submissions at [50] - [53].
[10] Respondent’s outline of submissions at [5] and attachment letter dated 8 April 2022 to Mr Sacchetta.
[11] Respondent’s outline of submissions at [10].
[12] Respondent’s outline of submissions attachment.
[13] Respondent’s outline of submissions at [23].
Printed by authority of the Commonwealth Government Printer
<PR745456>
0
1
0