FEDERAL COURT OF AUSTRALIA
Vassallo v Easitag Pty Ltd [2020] FCA 875
File number: VID 461 of 2018 Judge: KERR J Date of judgment: 23 June 2020 Catchwords: INDUSTRIAL LAW – classification of employee for the purposes of the Electrical, Electronic and Communications Contracting Award 2010 and the National Electrical, Electronic and Communications Contracting Industry Award 1998 – matter previously arbitrated in the Fair Work Commission – whether decisions of the Fair Work Commission and Full Bench of the Fair Work Commission extinguished justiciable controversy between parties as to classification of the applicant employee – cause of action estoppel established – issue of employee’s classification not open to be re-agitated in proceedings before the Federal Court of Australia Legislation: Fair Work Act 2009 (Cth) ss 570, 739 Cases cited: Administration of Papua New Guinea v Guba [1973] HCA 59; 130 CLR 353
Jeffrey Vassallo v Easitag Pty Ltd T/A Easitag [2017] FWC 5961
Jeffrey Vassallo v Easitag Pty Ltd [2018] FWCFB 501
Schroder-Turk v Murdoch University (No 2) [2019] FCA 1434
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533
Date of hearing: 16 June 2020 Date of last submissions: 12 June 2020 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 33 Counsel for the Applicant: Mr S Burt Solicitor for the Applicant: McDonald Murholme Solicitors Counsel for the Respondent: Ms S Bingham Solicitor for the Respondent: Blue Rock Law Pty Ltd ORDERS
VID 461 of 2018 BETWEEN: JEFFREY VASSALLO
Applicant
AND: EASITAG PTY LTD
Respondent
JUDGE:
KERR J
DATE OF ORDER:
23 JUNE 2020
THE COURT ORDERS THAT:
1.The separate question the subject of Order 1 made pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) on 20 March 2020, that is:
Do the decisions of the Fair Work Commission in proceedings C2017/227 (Decision of Commissioner Cirkovic in Jeffery Vassallo v Easitag Pty Ltd T/A Easitag [2017] FWC 5961) and C2017/6484 (Decision of the Full Bench in Jeffery Vassallo v Easitag Pty Ltd [2018] FWCFB 501) extinguish the justiciable controversy between the Applicant and the Respondent with respect to the classification of the Applicant as a level 4,5,6,7 and/or 10 under the Electrical Electronic and Communications Contracting Award 2010 (the EECCA) or National Electrical, Electronic and Communications Contracting Industry Award 1998 (the NEECA) while employed by the Respondent between 23 April 2008 and 26 January 2018?
be answered “Yes”.
2.Subject to Orders 3-5 below, there be no order as to costs.
3.The Respondent have leave to file and serve any written submissions on which it would seek to rely on the question of costs, of no more than 3 pages in length, no later than the expiry of 7 days after the publication of these reasons.
4.The Applicant have leave to file any responsive submissions on which he would wish to rely on the question of costs, of no more than…
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- AGLC
- Vassallo v Easitag Pty Ltd [2020] FCA 875
- Case
- [2020] FCA 875
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CaseChat Overview and Summary
The legal issues before the court encompassed the question of whether the decisions of the Fair Work Commission and its Full Bench had conclusively determined the applicant's classification, thereby extinguishing any further controversy between the parties. Additionally, the court needed to address whether a cause of action estoppel had been established, which would prevent the applicant from re-litigating the issue of his classification in the Federal Court. The court examined whether the issue of classification could be framed differently in the Federal Court, potentially opening up new classification options that were not available to the Fair Work Commission.
In its reasoning, the court held that the prior arbitration decisions of the Fair Work Commission and its Full Bench had indeed conclusively determined the applicant's classification as an Electrical Worker Grade 4. The court was unpersuaded by the argument that the applicant could pursue a different question in the Federal Court, as it found that the issue of classification had already been fully and finally determined by the Fair Work Commission. The court also found that the applicant was estopped from re-litigating the issue of his classification due to the prior arbitral decisions, which had effectively resolved the controversy between the parties. Consequently, the court answered the separate question posed in the proceedings in the affirmative, confirming that the prior decisions extinguished the justiciable controversy.
The court made several orders to manage the proceedings. It confirmed that the prior arbitral decisions extinguished the justiciable controversy between the parties concerning the applicant's classification. Additionally, the court allowed the respondent to file written submissions on the question of costs, limited to three pages, within seven days of the publication of the court's reasons. The applicant was similarly granted leave to file responsive submissions on the question of costs, also limited to three pages, within seven days of the respondent's submissions being served. If written submissions were filed, the issue of costs would be determined on the papers. The court further directed that if submissions were filed, the matter would proceed to determine the costs on the papers.
Orders
Orders of the court
1. The separate question the subject of Order 1 made pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) on 20 March 2020, that is:
Do the decisions of the Fair Work Commission in proceedings C2017/227 (Decision of Commissioner Cirkovic in Jeffery Vassallo v Easitag Pty Ltd T/A Easitag [2017] FWC 5961) and C2017/6484 (Decision of the Full Bench in Jeffery Vassallo v Easitag Pty Ltd [2018] FWCFB 501) extinguish the justiciable controversy between the Applicant and the Respondent with respect to the classification of the Applicant as a level 4,5,6,7 and/or 10 under the Electrical Electronic and Communications Contracting Award 2010 (the EECCA) or National Electrical, Electronic and Communications Contracting Industry Award 1998 (the NEECA) while employed by the Respondent between 23 April 2008 and 26 January 2018?
be answered “Yes”.
2. Subject to Orders 3-5 below, there be no order as to costs.
3. The Respondent have leave to file and serve any written submissions on which it would seek to rely on the question of costs, of no more than 3 pages in length, no later than the expiry of 7 days after the publication of these reasons.
4. The Applicant have leave to file any responsive submissions on which he would wish to rely on the question of costs, of no more than 3 pages in length, no later than the expiry of 7 days after any submissions filed pursuant to Order 3 are served on him.
5. If written submissions are filed pursuant to Order 3, the issue of costs be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Mr Burt submits that as a result (subject to Mr Vassallo’s concession that he cannot re-agitate the proposition that he should have been paid as an Electrical Worker Grade 10) the Applicant is not estopped from pursuing in this Court the issue of whether he was entitled to be remunerated as an Electrical Worker Grade 5, 6 or 7. In summary:The Applicant contends that … this Court would be determining a different question to that answered by the FWC in respect to the classification of the Applicant under the Award. As a result of it being a different question, framed in a different way, with classification options open to this Court that were previously unavailable to the FWC, the Applicant is not estopped, nor is there a risk of abuse of process.CONSIDERATION In my view, the resolution of the separate issue turns on a question of fact. I regret, given that Mr Vassallo may well have been misled by the (no doubt well intentioned) observations of the Full Bench into pursuing this aspect of these proceedings, that I am unpersuaded that the arbitration in the FWC Proceedings from which leave to appeal was refused in the FWCFB Proceedings did not finally and conclusively determine that the Applicant was an Electrical Worker Grade 4. Whether or not Mr Vassallo was properly to be characterised as an Electrical Worker Grade 4 within the meaning of the EECCA was self-evidently a question within the scope of the parties’ agreed submission to arbitration in the FWC. I reject Mr Burt’s submission that had the arbitrator concluded that Mr Vassallo was neither an Electrical Worker Grade 4 nor an Electrical Worker Grade 10, the arbitrator would have had to make a best fit election as between those two options. That cannot be correct. In determining the issues submitted to it for arbitration (as the Commissioner accurately stated them), the Commissioner may have been conducting an arbitration that had been voluntarily submitted to in the terms agreed to by the parties. In doing so however, the FWC was required to apply the EECCA. The parties each made submissions for their preferred conclusion. However, had the Commissioner concluded that neither of the gradings contended for by the parties was the Applicant’s correct classification, then it would have been open to her to have so determined. Indeed, it would have been her duty to do so. I note however that without an adjustment to the terms of the parties’ mutual submission to the arbitration, it must be accepted that she could not have proceeded to make a binding and final determination that the Applicant was entitled to be classified at a different level. Yet in the actual event, all of that is academic. That was not what happened. The result of the arbitration was that the arbitrator found that the correct classification of Mr Vassallo’s position was Electrical Worker Grade 4. The Commissioner expressly concluded:[49]In summary, when all the evidence regarding the functions and responsibilities of the role of Victorian technician have been considered and assessed against the relevant terms of the Award the answer to the issue in dispute between the parties is that the correct classification of the Applicant’s position is Electrical Worker Grade 4.