Transport Workers' Union of Australia v Q Catering Limited

[2014] FWC 6160

[2014] FWC 6160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
Q Catering Limited
(C2014/4714)

Qantas Airways Limited and Q Catering Limited - Transport Workers Workplace Determination 2012

[AG895843]

COMMISSIONER HAMPTON ADELAIDE, 21 OCTOBER 2014

Dispute about application of a Workplace Determination - whether prior service as a casual counts as service for the purposes of redundancy - approach to interpretation considered - decisions in other instruments considered but determined on their own facts - overall context and provisions of the Workplace Determination more consistent with prior casual service not being counted for present purposes - dispute determined.

1. The nature of the dispute and the application before the Commission

[1] This matter concerns a dispute about the application of the Qantas Airways Limited and Q Catering Limited - Transport Workers Workplace Determination 2012 (the Workplace Determination). The dispute is essentially whether full-time (or part-time) employees, who have previously had a period of employment as a casual employee, are entitled to have that service included for the purpose of calculating compulsory redundancy entitlements under the terms of the Workplace Determination.

[2] The Workplace Determination was made by a Full Bench of the Commission 1 under s.266 of the Fair Work Act 2009 in August 2012. The background to its making is set out in the decision of the Full Bench issued at that time.2

[3] The Transport Workers’ Union of Australia (TWU) is covered by the Workplace Determination and has made application for the Commission to deal with this dispute under s.739 of the Act. The dispute is focused upon the circumstances of particular employees that have been made redundant at the Adelaide operations of Q Catering Limited, which is also covered by Workplace Determination. However, by implication, the dispute concerns the operation of the Workplace Determination more generally, at least as it might apply in circumstances similar to those at the Adelaide operations.

[4] In the lead up to the redundancies, Q Catering provided calculations of the estimated redundancy payments under the relevant compulsory redundancy provisions of the Workplace Determination. When some of the employees were made redundant, there was a discrepancy between the estimates and the actual payments. It was subsequently revealed that in some cases, a period of prior casual service had been included in the calculation of the estimates and not reflected in the actual payments.

[5] Clause 12 Procedures for the Settlement of Industrial Disputes of the Workplace Determination establishes a process culminating in disputes arising under the determination being referred to the Commission. It is common ground that this process has been followed and that the Commission has the jurisdiction to determine the dispute in accordance with clause 12 and s.739 of the Act.

2. The terms of the Workplace Determination

[6] The resolution of this dispute involves the consideration of the Workplace Determination as a whole. However particular provisions are relied upon by both parties and these are all apposite.

[7] The provisions applying to compulsory redundancies are established in Appendix A - Compulsory Redundancy. The full extent of that appendix is attached to this decision for ease of reference.

[8] Appendix A does not expressly state the scope of employees to be covered by the provision. However, it is agreed that it does not apply to casual employees in the sense that such employees do not have an entitlement upon being made redundant. 3

[9] For present purposes, the operative parts of Appendix A are as set out below.

“Redundancy payments

For redundancy under the terms of this Workplace Determination, the following package shall apply:

● Three (3) weeks’ pay for each year of service up to and including five (5) year’s service, with a minimum of four (4) weeks’ pay.
● Four (4) weeks‘ pay for each completed year of service in excess of five (5) years; and
● Pro-rata payment for each completed month of service.
● The above-mentioned payments do not include payments in lieu of notice.

Pay calculation

For the purposes of this Workplace Determination, ―pay shall be paid at the ordinary time rate prescribed in this Workplace Determination and shall include regular weekly payments, such as service increments and supervisory allowances, but shall exclude shift, overtime and extraneous payments.

Notice period

An employee will be given the following period of notice of termination on the grounds of redundancy instead of the period of notice prescribed by Clause 16 – Termination of Employment.

Completed years of service	Notice in weeks
Up to and including 4 years	4
5-9 years	8
10 years and above	12

Provided that an employee who is over 45 years of age will receive no less than 5 weeks notice.

Maximum redundancy payment

Any redundancy payments for full time employees who convert to part-time will continue to be calculated on full-time equivalent salary with the period of service being adjusted to reflect the hours actually worked.

Maximum redundancy payment

Part 1: This component shall only be available to employees who commenced their employment on or prior to 16 October 1996:

● The then value of an employee‘s accumulated redundancy payments as at 16 October 1996 shall be frozen in money terms and increased by 2% per annum for each year of service after 16 October 1996. To this amount shall be added any redundancy payments that accrue under the new redundancy scheme (see Part 2) for service from 16 October 1996. An employee‘s actual date of commencement of service will be used to calculate any redundancy payments under Part 2 (that is, for the purpose of determining whether 3 weeks or 4 weeks pay per year of service applies pursuant to the redundancy payments prescribed above for the calculation under Part 2).

Part 2: Applies to Employees engaged after 16 October 1996 and to service after 16 October 1996 for employees engaged on or prior to 16 October 1996:

● The new redundancy scheme shall apply to all employees. The maximum benefit for redundancy pay under the new redundancy scheme shall be ninety-five (95) weeks pay exclusive of notice periods.

Other entitlements

A. Annual Leave Loading

Accrued annual leave credits, including pro-rata leave due at the date of termination, will be paid at the greater of the annual leave loading (17.5%) or the projected shift penalties pertaining to the individual.

B. Long service leave

Pro-rata long service leave shall be paid to employees with more than twelve (12) months’ continuous service. For the purpose of these provisions, long service leave will be applied in accordance with the amount provided under the Company’s long service leave provisions.

C. Superannuation

Superannuation payments will be as per Company plan rules, plus full vesting of the Company’s contributions with interest where not already applicable.

D. Preservation

It will be necessary to comply with the government’s regulations in respect of the preservation of superannuation benefits.

E. Employee Travel

See staff travel policy manual.

F. Redeployment

● To other duties. Where an employee has been redeployed to a lower paid position, the employee shall be given four (4) weeks‘ notice of transfer and receive salary maintenance (being the difference between the former ordinary time rate and the new lower rate) for a period of six months following the transfer.

● To other ports. Where the Company offers and the employee accepts redeployment requiring a change of domicile, e.g. Sydney to Perth, Cairns to Brisbane, the employee shall be entitled to normal transfer costs in accordance with Company policy.

G. Company Certificate of Service

A statement of service will be issued to each redundant employee, indicating the employee‘s length of service and that he/she was retrenched from the airline. This certificate can be collected from the Company on the employee‘s last day of employment.”

[10] The history of Appendix A is that a provision in similar terms had been included in a series of enterprise bargaining agreements approved or certified by the Commission and its predecessors. The Full Bench in making the Workplace Determination was not required to arbitrate the terms of the Appendix and it was inserted largely in the same terms as the Certified Agreement applying to these parties at the time.

[11] Previous versions of Appendix A have largely contained the same operative provisions; albeit that in 2002, the relevant instrument 4 expressly provided that the provision did not apply to “casual employees, or employees engaged by the hour”. Subsequent agreements have not contained an equivalent provision however there is no evidence to suggest that the application or implementation of the provision changed in that regard. There have also been changes to the level of the benefits over time, however the framework of entitlements has not changed so as to bear upon the resolution of the particular issue arising in this dispute.

[12] The provisions in relation to casual employment are set out in clause 15.8 of the Workplace Determination in the following terms.

“15.8 Casual Employment

15.8.1 Circumstances under which Casuals may be engaged

The future use of casual employment is primarily to meet unplanned or peak workloads to maintain the efficiency of the Company's operations. Casuals may be employed as per all relevant provisions of the Workplace Determination and to cover peak and unplanned workloads.

15.8.2 Definition - A casual employee is an employee engaged as such.

15.8.3 Minimum hours and rates of pay

(a) Except as provided in 15.8.3(b), casual employees must be employed for a minimum of 7 hours 36 minutes per day. Casual employees must be paid a minimum amount per day of 1/5 of the weekly wage applicable to the classification in which they are employed plus 15 per cent.

(b) Casual employees employed in Western Australia, Mount Isa, Alice Springs, Yulara, Groote Eylandt and Adelaide must be employed for a minimum of four hours per day. These casual employees must be paid an hourly rate of 1/38 of the weekly wage of the classification in which they are employed plus 25 percent.

(c) Any casual employee who is required to work more than 7 hours 36 minutes in any day must be paid in accordance with the overtime provisions in this Workplace Determination.”

3. The position advanced by the TWU

[13] Mr Laurie, who appeared for the TWU, contends that all years of service count for the purposes of calculating service under Appendix A. That is, full-time and part-time employees upon being made redundant are entitled to have any casual years of service included.

[14] The TWU’s relies upon the following propositions:

● Appendix A refers only to “completed years of service” and not to “continuous years of service” and there is no apparent distinction drawn between casual and other forms of service;
● There is no express exclusion of casual service;
● In the absence of a definition of service, it should be given its normal construction and applied to any contiguous or reasonably contiguous employment;
● There was nothing to suggest that Q Catering had not previously recognised casual service for redundancy purposes; and
● The estimates provided prior to the redundancies being confirmed had included casual service.

[15] The TWU also contends that casual employees in the Adelaide operation were engaged on a regular and systematic basis and were not treated as “traditional” casuals. Further, the Workplace Determination does not specify the basis for the additional 25% pay for casuals and in any event this payment was insufficient to compensate for the loss of access to redundancy given the significant maximum redundancy payments provided in Appendix A.

[16] Given the nature of the casual service here, the TWU contends that the approach adopted in s.384 of the Act, to recognise such service for the purposes of unfair dismissal matters, was a useful insight. In addition, the TWU contends that the casual service would not be excluded for the purposes of s.22 of the Act.

[17] The TWU also contends that the case law reinforces that it is the particular circumstances of each instrument that must be considered and where prior casual service was not counted, this was due to express exclusions. In that light, the TWU further contends that if the Workplace Determination intended to exclude casual service for present purposes, the parties would have made this express intention clear.

[18] Finally, the TWU contends that “service”, for the purposes of Appendix A, should simply mean “the action of helping or doing work for someone”. 5

[19] The TWU relied upon the evidence of Ms Brydie Maynard and Mr Sheridan Smith, who were each employed by Q Catering initially as casuals, and subsequently, full-time employees, before being made redundant.

4. The position advanced by Q Catering

[20] Mr Colgrave, who appeared with permission for Q Catering, contends that prior casual service does not form part of an employee’s service for present purposes and the employer was not required to include that service in calculating redundancy payments.

[21] The position of Q Catering was based upon the following approach:

● The pay calculation in Appendix A referred only to ordinary time rates and regular weekly payments and this was not consistent with the parties contemplating payments for casual service;
● There should be no distinction drawn between service and continuous service;
● The ordinary meaning of continuous service excludes periods of casual employment and such employment was characterised by a series of contracts which would not normally be considered to be continuous; and
● Casual employees are not entitled to severance pay under Appendix A or under any of the earlier instruments applying to the parties.

[22] Q Catering also contends that the 25% additional payment should be considered to be a casual loading and that such a loading was intended to compensate for the fact that casuals are not entitled to redundancy pay. In that light, it argued that the inclusion of casual service for redundancy purposes would represent double dipping.

[23] Further, Q Catering contends that there was no custom and practice of recognising casual service for present purposes.

[24] In terms of the case law, Q Catering contends that this reinforces that casual loadings compensate for non access to redundancy benefits and that casual service was not counted for the purposes of redundancy payments unless the relevant instrument expressly stated so.

[25] Q Catering also rejected the notion that s.384 or s.22 of the Act were relevant here, or of assistance to the TWU, if considered.

[26] Q Catering relied upon the evidence of Ms Sharon Marendaz, its Consultant, Human Resources.

5. The correct approach to the construction of a Workplace Determination

[27] In AMWU v Silcar[2011] FWAFB 2555, a Full Bench summarised the approach to be adopted to the interpretation of an Enterprise Agreement in the following way:

“[9] In an oft-cited passage from Kucks v CSR Limited Madgwick J held:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[10] In Short v FW Hercus Pty Ltd Burchett J, with whom Drummond J agreed, held that regard may be had to the history of a provision:

“No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: “The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.”

The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.

...Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. “Sometimes”, McHugh J. said in Saraswati v. R (1991) 172 CLR 1 at 21, the purpose of legislation “can be discerned only by reference to the history of the legislation and the state of the law when it was enacted”. Awards must be in the same position.”

[11] It is well established that these principles, stated in relation to the interpretation of awards, are equally applicable to the interpretation of industrial agreements. They have application in the present case.”

[28] Although the task is to identify the common intention of the parties as expressed in the terms of “their” agreement, the subjective intentions or expectations of the parties are irrelevant. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd 6 the High Court described the task, in the context of commercial contracts, as follows:

“It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”

[29] I also note that in National Tertiary Education Industry Union v University of Western Sydney[2014] FWCFB 2836 the Full Bench also stated:

“[28] ...It is permissible to look to the operation of an instrument when construing it.  The authorities emphasising this point in respect of industrial instruments are numerous and uncontroversial: it has been said that the words of an award “must not be interpreted in a vacuum divorced from industrial realities” and that the process of construction should be one which “contributes to a sensible industrial outcome such as should be attributed to the parties.”

[30] Further, Mason J affirmed in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd: 7

“Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.” 8

[31] It appears to me that with one qualification, which I add for completeness, the above approach is applicable to the construction of a Workplace Determination. Given the nature of such an instrument, in circumstances where the Commission has arbitrated a provision, an important part of the context would be set by the decision issued by the Full Bench as part of making the determination. This should operate in the same manner as reasons for decisions issued in the award making jurisdiction of the Commission. 9 This aspect is not of direct assistance in this matter.

[32] I also add that consistent with s.739 of the Act, any decision arbitrating the dispute must not be inconsistent with the Act or the relevant instrument. 10

6. The facts

[33] It is not necessary to make extensive findings of fact for present purposes. I found each of the witnesses were truthful and gave evidence in relation to the matters in which they were directly involved in, with confidence and clarity.

[34] It is clear that both Ms Maynard and Mr Smith were initially engaged as casual employees under one of the predecessors of the Workplace Determination. This was confirmed in their letters of appointment. They were each employed at the Adelaide operations of Q Catering for many years and became full or part-time employees during that time.

[35] Whilst engaged as a casual, they were regularly and systematically engaged, however their hours would fluctuate to a degree depending upon work requirements and peak periods for airline operations.

[36] Each employee was compulsorily made redundant in March 2014 under the terms of Appendix A of the Workplace Determination. Both had their final redundancy payments calculated based only upon their full and part-time service and the periods of prior casual service were not included.

[37] In each case, earlier estimates of the likely redundancy payments provided by Q Catering had included the period of prior casual service. In the case of Mr Smith, the Certificate of Service provided by Q Catering upon his redundancy referred to a period of service that included the original commencement date when he started as a casual employee.

[38] There is evidence 11 to support the notion that the original calculations were provided by mistake, at least as far as Q Catering was concerned.

[39] There is no evidence that Q Catering has included prior casual service for the purposes of Appendix A (or its predecessor) in any other cases of compulsory redundancy.

7. The application of Appendix A to prior casual service

[40] The essential question is whether Appendix A should be applied such that “service” for the purposes of the redundancy payments is taken to include the prior periods of employment undertaken by the employees when they were casuals.

[41] The starting point for the construction of the provision is the consideration of the language of the instrument understood in the light of the industrial context and purpose of that instrument. In this case, the Workplace Determination in Appendix A refers to each “year of service” in relation to the redundancy entitlements and there is no qualifier or other express guidance provided by the clause. It does not refer to the notion of continuous service or define which service is to be included. If given the widest import, that expression could include service of any kind. However, some consideration of the context of the provision and its ramifications is important.

[42] That broader industrial context is set in part by two factors.

[43] Firstly, casual employees are paid a loading to recognise the nature of that employment and to compensate for the loss of access to certain entitlements that apply to other employees. Although the 25% applicable to the casual employees in Adelaide under clause 15.8.3(b) is not expressly identified as a casual loading, it is payable only to those employees and is consistent with casual loadings now applying more generally.

[44] It is therefore reasonable to treat the 25% as a casual loading compensating for the normal factors embraced by such a loading. These include the loss of access to redundancy benefits. 12

[45] In terms of the double-counting as relied upon by Q Catering, I have considered that the loading in this context may not be seen as sufficient to “buy out” the relatively generous redundancy payments here. However, this depends upon the circumstances. For instance, if an employee had a long period of employment as a casual with the loading, and then became a full-time employee just prior to being made redundant, the inclusion of the casually loaded service might appear to be a curious result.

[46] Secondly, Appendix A does not apply to casuals. This common understanding, which is not expressly stated in the present Workplace Determination, but is consistent with the normal approach to redundancy provisions found in other instruments, tends to indicate that the normal approach to such provisions more generally may also be appropriate.

[47] As part of the broader consideration of context, it is therefore also appropriate to consider the approach taken by Courts and Tribunals to the issue more generally. In doing so, it is evident that each instrument must be considered on its own terms and some of these approaches have been impacted by the express terms of the agreements or other instruments concerned.

[48] In National Tertiary Education Industry Union v La Trobe University[2009] AIRC 576 Whelan C held that in the absence of an express intention to include periods of casual employment for the purposes of the redundancy pay provisions of the relevant agreement, the Commission was not satisfied that any periods of casual employment should be taken into account in calculating an employee's entitlements to redundancy pay under the agreement. The Commission did so in the following manner:

“[62] Madgwick J in Kucks v CSR Limited stated that in interpreting an award “ordinary or well understood words are in general to be accorded their ordinary or usual meaning”. He also suggested that awards (and I would suggest that this is even more likely to be the case with agreements) may have been expressed in ways likely to have been understood in the industry. An expression such as continuous service is used frequently in industrial instruments. In the absence of any definition expressing a contrary intention, the context in which the Agreement was made would suggest that the terms should be given its ordinary meaning.

[63] In my view, the ordinary meaning of continuous service excludes periods of casual employment because such employment is characterised by a series of contracts or engagements which would not normally be considered as continuous employment or continuous service.

[64]In the absence of an expressed intention to include periods of casual employment as service for the purposes of clause 41, I am not satisfied that any periods of casual employment can be taken into account in calculating an employee's entitlement under that section.”

[49] In Australian Municipal, Administrative, Clerical and Services Union v Fairfax Regional Media – Newcastle Newspapers (Herald)[2014] FWC 5631, Sams DP, was dealing with a dispute as to whether a particular redundancy provision applied only to “permanent” employees, and stated: 13

“...the fact is that throughout (the relevant) time (the casual employees) had received a 20% casual loading on their base rates of pay. Casual loadings are intended to compensate a casual employee for the benefits and entitlements otherwise available to permanent part time and full time employees such as annual leave, sick leave and redundancy payments. This has been a long held and well known principle under workplace law.”

[50] Some instruments do expressly provide that casual, or similar service, may be included for the purposes of redundancy payments. As relied upon by the TWU, in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Safries Pty Ltd[2014] FWC 2352, O’Callaghan SDP was dealing with an enterprise agreement which stated (in Appendix 1) that "periods of short term employment will accumulate from year to year included for the purpose of calculating length of service under this agreement. Provided that the break between periods of short term or casual employment does not exceed six months." The issue to be resolved was whether the redundancy provision applied to casual employees.

[51] After reviewing the history of casual loadings and the nature of the relevant modern award referred to in the enterprise agreement, the SDP observed:

“[38] Consequently, in terms of the Agreement, unless Appendix 1 can be read as establishing an entitlement for redundancy pay, I do not consider that any such right can be inferred. ......

... ...

[40] I think that Appendix 1 must be read as establishing an entitlement to redundancy payments for weekly employees on the basis that these payments recognise periods of short-term or casual employment within the limitations established by clause 14. Those periods of short-term or casual employment entitle the weekly hire employee to receive redundancy payments calculated at a lesser rate of accrual for that period. There is no specific entitlement to redundancy pay for employees who, at the time of the redundancy, were not weekly hire employees.”

[52] It is evident in this analysis that in the absence of this specific provision, such casual service would not have figured in the calculation of the length of service for redundancy entitlement under that agreement.

[53] In a matter more on foot with the earlier cases, the Industrial Relations Court of South Australia in Schuman v Pace Trading Pty Ltd (2007) 169 IR 101, held that the employee’s prior casual service should not be recognised as continuous service for the purposes of calculating severance pay entitlements. Hardy IM found:

“[57] I am also of the view that if the applicant is to be considered to be a casual employee during the first period of her employment and I certainly consider that to be the case, there would have been no question that she would not have qualified for a redundancy payment had her employment been terminated during that period of casual employment. The applicant’s submissions depend in part upon the fact that she was terminated as a permanent employee so that the previous casual service can be included but I do not agree. If the casual service did not qualify her for a redundancy during the currency of that service it makes no sense to me that it would do so at a later juncture after some permanent service.”

[54] These cases demonstrate that the conventional approach is that in the absence of an express provision, prior service as a casual does not count for the purposes of redundancy entitlements. However, the particular terms of each instrument need to be considered.

[55] Against that background, I return to the specific provisions of the Workplace Determination.

[56] Item G of Appendix A refers to a statement of service being provided to a redundant employee. At least in the case of Mr Smith, the statement given to him reflected the entire duration of his employment including that period when he was a casual employee. Whilst this is a consideration, the statement is clearly intended to be a benefit to assist the redundant employee and I do not consider that the arguably more generous approach taken to the statement in some cases is determinative of whether that period should count for the purposes of the redundancy calculation.

[57] There is also a provision in Appendix A dealing with the circumstances where an employee converts from full-time to part-time. The fact that there is no similar provision relating to how the casual service is to be treated, which could by definition fluctuate more widely than part-time work, is more consistent with that form of service not being contemplated.

[58] The pay calculation for redundancy payments is based upon the ordinary time rate and includes regular weekly payments. This is consistent with the agreed position that the redundancy benefits apply only to part and full-time employees. However, it is not of any real assistance in dealing with the prior service issue.

[59] The inclusion of the casual service as part of the initial calculations provided to the employees is also not decisive given the evidence including the absence of previous recognition of casual service for present purposes.

[60] There is evidence to suggest that at least some, and potentially most, casual employees at the Adelaide operations of Q Catering in past years were engaged on a relatively regular and consistent basis. Clause 15.8 contemplates casual employees being primarily used to meet unplanned or peak workloads to maintain the efficiency of the Company's operations. However, the provision is not written in exclusive terms and the casual employees here were engaged and paid as casuals for the relevant initial periods of their employment.

[61] Some insight into the notion of service by casual employees can be gained from the consideration of the Full Bench in Wayne Shortland v The Smiths Snackfood Co Ltd, 14 (Shortland) which said:

“[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.”

[62] I note that this decision was in the context of the provisions of the Act dealing with the period of employment necessary to be protected from unfair dismissal, and the rest of the decision deals with the particular statutory provisions which are not relevant here.

[63] Shortland suggests that the traditional approach to the nature and treatment of casual non-continuous employment and service, in the absence of an express contrary provision - which is not found here, is capable of extending to the kind of service undertaken by the casuals at Q Catering.

[64] I would however accept that the kind of casual employment here is more consistent with the nature of service that might, at least conceptually, be recognised for the purposes of redundancy.

[65] In the end, there is a balance of considerations. Although “year of service” may be given the widest import to include service of any kind, there is no express provision confirming that the prior casual service is to be counted and there is no history of such service being included for present purposes. Further, the nature of casual employment, the general context for the operation of redundancy provisions, and the fact that it is agreed that Appendix A does not apply to casual employees, are important factors. Despite some contrary considerations set out above, I do not consider that the intention of the Workplace Determination should be taken to operate in that manner.

8. Conclusions

[66] On balance, I do not consider that full-time (or part-time) employees, who have previously had a period of employment as a casual employee, are entitled to have the prior service as a casual employee included for the purpose of calculating compulsory redundancy entitlements under the terms of the Workplace Determination.

Appearances:

E Lawrie for the Transport Workers’ Union of Australia.

I Colgrave of Counsel, with permission for the Q Catering Limited.

Hearing details:

2014.

Adelaide.

September 5.

APPENDIX A - COMPULSORY REDUNDANCY

Redundancy occurs if the Company has made a definite decision that the Company no longer wishes the job the employee has been doing done by anyone; and the decision is not due to the ordinary and customary turnover of labour.

The Company and where the redundancy impacts a member of the Union, the Union agrees to seek to manage all necessary staff reductions in a manner aimed at minimising the need for redundancies. Only after these means have been exhausted will a redundancy program be embarked upon.

Notwithstanding any obligations for notification that accrue as a result of the Act, where the Company decides to terminate the employment of employees on account of redundancy, then as soon as practicable after so deciding, and before the terminations take place, employees and where the redundancy impacts a member of the Union, the Union will be advised of the decision, together with:

● The terminations and the reasons for them;
● The number and categories of employees likely to be affected; and
● The time when, or the period over which, the Company intends to carry out the terminations.

Further, prior to termination of employment and prior to the final determination, the Company will meet as a minimum its statutory obligations to consult employees and where the redundancy impacts a member of the Union, the Union on measures to avert or minimise the terminations, and implement measures (such as finding alternative employment) to mitigate the adverse effects of the terminations.

The redundancy program shall have regard to:

● Retaining an age, skill and experience balance within areas of employment in each employment category;
● No discrimination against employees; and
● Special efforts to minimise retrenchment of apprentices or trainees.

The Company will consult with the Union where the redundancy impacts a member of the

Union, on the process to be adopted on a case-by-case basis.

Redundancy payments

For redundancy under the terms of this Workplace Determination, the following package shall apply:

● Three (3) weeks’ pay for each year of service up to and including five (5) year’s service, with a minimum of four (4) weeks’ pay.
● Four (4) weeks‘ pay for each completed year of service in excess of five (5) years;

and

● Pro-rata payment for each completed month of service.
● The above-mentioned payments do not include payments in lieu of notice.

Pay calculation

For the purposes of this Workplace Determination, ―pay shall be paid at the ordinary time rate prescribed in this Workplace Determination and shall include regular weekly payments, such as service increments and supervisory allowances, but shall exclude shift, overtime and extraneous payments.

Notice period

An employee will be given the following period of notice of termination on the grounds of redundancy instead of the period of notice prescribed by Clause 16 – Termination of Employment.

Completed years of service	Notice in weeks
Up to and including 4 years	4
5-9 years	8
10 years and above	12

Provided that an employee who is over 45 years of age will receive no less than 5 weeks notice.

Maximum redundancy payment

Any redundancy payments for full time employees who convert to part-time will continue to be calculated on full-time equivalent salary with the period of service being adjusted to reflect the hours actually worked.

Maximum redundancy payment

Part 1: This component shall only be available to employees who commenced their employment on or prior to 16 October 1996:

● The then value of an employee‘s accumulated redundancy payments as at 16 October 1996 shall be frozen in money terms and increased by 2% per annum for each year of service after 16 October 1996. To this amount shall be added any redundancy payments that accrue under the new redundancy scheme (see Part 2) for service from 16 October 1996. An employee‘s actual date of commencement of service will be used to calculate any redundancy payments under Part 2 (that is, for the purpose of determining whether 3 weeks or 4 weeks pay per year of service applies pursuant to the redundancy payments prescribed above for the calculation under Part 2).

Part 2: Applies to Employees engaged after 16 October 1996 and to service after 16 October 1996 for employees engaged on or prior to 16 October 1996:

● The new redundancy scheme shall apply to all employees. The maximum benefit for redundancy pay under the new redundancy scheme shall be ninety-five (95) weeks pay exclusive of notice periods.

Other entitlements

A. Annual Leave Loading

Accrued annual leave credits, including pro-rata leave due at the date of termination, will be paid at the greater of the annual leave loading (17.5%) or the projected shift penalties pertaining to the individual.

B. Long service leave

Pro-rata long service leave shall be paid to employees with more than twelve (12) months’ continuous service. For the purpose of these provisions, long service leave will be applied in accordance with the amount provided under the Company’s long service leave provisions.

C. Superannuation

Superannuation payments will be as per Company plan rules, plus full vesting of

the Company’s contributions with interest where not already applicable.

D. Preservation

It will be necessary to comply with the government’s regulations in respect of the

preservation of superannuation benefits.

E. Employee Travel

See staff travel policy manual.

F. Redeployment

● To other duties. Where an employee has been redeployed to a lower paid position, the employee shall be given four (4) weeks‘ notice of transfer and receive salary maintenance (being the difference between the former ordinary time rate and the new lower rate) for a period of six months following the transfer.

● To other ports. Where the Company offers and the employee accepts redeployment requiring a change of domicile, e.g. Sydney to Perth, Cairns to Brisbane, the employee shall be entitled to normal transfer costs in accordance with Company policy.

G. Company Certificate of Service

A statement of service will be issued to each redundant employee, indicating the employee‘s length of service and that he/she was retrenched from the airline. This certificate can be collected from the Company on the employee‘s last day of employment.

H. Notification to Relevant Authorities

The Company shall notify relevant authorities as required by the Act as soon as possible of relevant information in respect of those employees’ compulsory retrenchment and arrange visits by the relevant authorities to appropriate Company premises.

I. Outplacement Services

The Company will provide outplacement service for all retrenched employees. The level of outplacement service provided will be determined by the Company in consultation with relevant authorities and will include a detailed work history of the employee and assistance towards the preparation of CVs. Where practicable, outplacement services will be provided during the period of special paid leave and prior to cessation of employment with the Company.

J. Financial Counselling

All employees nominated for retrenchment will be provided with a detailed estimate of the redundancy pay and superannuation entitlements, at the time of their nomination.

Employees who are retrenched will have access to financial counselling.

Where practicable, financial services will be provided to the employee during the period of special paid leave.

Where practicable, this service will be provided on Company premises.

K. Welfare Services

The services of the Company‘s employee assistance counsellors will be available

on request for an appropriate period to any employee compulsorily retrenched.

L. Appeal Rights

An employee who receives notice of redundancy and wishes to continue in employment with the Company may apply for a review of the decision within four (4) working days of receiving that notice. The Company shall complete the review process within two weeks. The notice period shall be suspended for the period of the review.

M. Employment

A retrenched employee will be given preference for re-employment where it is advertised externally, subject to meeting the requirements of the position.

This provision shall not apply where an employee has rejected suitable and reasonable redeployment. Where redeployment has been rejected, a Company employee is ineligible to be offered re-employment under the terms of this clause until a period of twelve (12) months has elapsed from the employee‘s date of retrenchment on account of redundancy.

This twelve (12) month period does not apply to redundant employees seeking employment with the Company as casuals under the casuals’ clause of this Workplace Determination.

N. Time off during the period of Notice

If the Company gives an employee notice of termination, the Company must allow the employee up to one day’s paid leave during each week of notice to seek other employment.

If more than one day’s leave is taken, the employee must, at the Company‘s request provide proof of attendance at an interview. If proof is not provided, the employee must not be paid for the time off.

O. Employee leaving during the Notice period

An employee whose employment is terminated by reason of redundancy may terminate his/her employment during the notice period. If the employee does so, the employee is entitled to the same benefits and payments under this clause had the employee remained with the Company until the expiry of the notice period. The employee is not, however, entitled to payment in lieu of notice.

P. Retraining

Where practicable retraining opportunities will be provided to employees declared redundant.

Q. Suitable Alternative Employment

The Company will take reasonable steps to arrange or assist in obtaining suitable alternative employment for employees who would otherwise be retrenched.

The Company, in any particular redundancy case may make an application to FWA pursuant to Clause 12, Procedures for the Settlement of Industrial Disputes, to vary the redundancy pay prescription if the Company obtains acceptable alternative employment for an employee.

R. Transfer of business

If a transfer of business occurs, and an employee of the Company becomes a transferring employee :

(a) an employee‘s continuity of service is deemed not to have been broken by reason of the transmission; and

(b) the employee‘s period of employment with the Company or any other prior transmittor is deemed to be service of the employee with the new employer.

Immediately prior to the transfer of business, the Company will provide transferring employees with a statement of their accrued and untaken personal, annual and long service leave.

S. Savings

Nothing contained within this Workplace Determination shall reduce any statutory protections with respect to redundancy related arrangements unless otherwise expressly agreed by exchange of correspondence.

 1   Then known as Fair Work Australia.

 2   [2012] FWAFB 6612.

 3   The scope of Appendix A was confirmed by both parties at the commencement of the hearing in this matter.

 4   Transport Workers’ Union of Australia (Qantas Airways Limited) Enterprise Agreement V.

 5   TWU written outline of submissions.

 6 (2004) 219 CLR 165.

 7 (1985) 60 ALR 509 at 514.

 8   Also see Solution 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 208 ALR 328 at 348 per Spigelmann CJ.

 9   See Australian and International Pilots Association v Qantas Airways Limited[2014] FWC 6201.

 10   S.739(5) of the Act.

 11   Statement of Ms Marendaz - exhibit Q1.

 12   The history of casual loading and the basis of the 25% loading now found in modern awards is set out in Metal, Engineering and Associated Industries Award 1998 [2008] AIRCFB 1000, [47]-[52].

 13   Although Sams DP was giving an opinion in the matter rather than making a determination, the observations are illustrative of the approach taken by the Commission in other matters.

 14   [2010] FWAFB 5709.

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