Ward v Besmaw Pty Ltd T/A Holt Group
[2016] FCCA 2811
•1 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARD v BESMAW PTY LTD T/A HOLT GROUP | [2016] FCCA 2811 |
| Catchwords: INDUSTRIAL LAW – Alleged contravention of s.340 and s.45 – whether the respondent took adverse action against the applicant by dismissing the applicant’s employment – whether the respondent dismissed the applicant – whether the respondent contravened a modern award – no adverse action taken by the respondent – no dismissal of the applicant – application dismissed. |
| Legislation: Fair Work Act 2009, ss.4, 45, 340, 341, 342, 350, 361, 368, 386, 566. Quarrying Award 2010, cl.2.1-2.4, 4.1, 7.1, 12, 13, 16, 22, 28. |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 |
| Applicant: | TONY WARD |
| Respondent: | BESMAW PTY LTD T/A HOLT GROUP |
| File Number: | SYG 1821 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 1 November 2016 |
| Date of Last Submission: | 1 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2016 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondent: | Mr R Warren |
| Solicitors for the Respondent: | Afei Legal |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1821 of 2016
| TONY WARD |
Applicant
And
| BESMAW PTY LTD T/A HOLT GROUP |
Respondent
REASONS FOR JUDGMENT
Background
This is an application within the Court’s jurisdiction under s.566 of the Fair Work Act2009 (Cth) (“the Act”) in respect of an alleged contravention of s.340 of the Act and s.45 of the Act. The applicant was employed as a casual quarry worker from 18 May 2015 until his resignation on 13 April 2016. The application brought proceedings in which the applicant alleged he had been the subject of adverse action as a result of alleged conduct over a period from 18 March 2016 to his resignation on 13 April 2016.
The applicant alleged that he was the subject of adverse action by reason of his reliance upon workplace rights. The applicant alleged that he was the subject of the alteration of his position and discrimination including an allegation that he was not competent to perform duties as a Quarry Worker Grade 5, allegedly denying the applicant access to overtime, allegedly directing the application to leave the workplace on short notice, allegedly issuing the applicant warnings without justification, allegedly threatening to dismiss the applicant, complaining in relation a requirement that the applicant returns workplace keys, alleging an alteration of the applicant’s duties; alleging an alteration of the applicant’s employment arrangement from that of a full-time basis to that of a casual employee, and allegedly dismissing the applicant on 6 April 2016.
The applicant also alleged a contravention of s.45 of the Act in relation to non-compliance with the Quarrying Award 2010, which applied to the applicant as a casual employee. The alleged non-compliance was in relation to a failure to pay overtime and an erroneous treatment of the applicant as Grade 4 where the applicant asserts he should have been Grade 5. As a result of which, the applicant brought a claim seeking compensation of pecuniary penalty as well as damages for the alleged losses suffered in contravention of the award and loss of income.
The relevant provisions of the Act are as follows:-
Section 4
Overview of this Act
(1) This Act is about workplace relations. It:
(a) provides for terms and conditions of employment (Chapter 2); and
(b) sets out rights and responsibilities of employees, employers and organisations in relation to that employment (Chapter 3); and
(c) provides for compliance with, and enforcement of, this Act (Chapter 4); and
(d) provides for the administration of this Act by establishing the Fair Work Commission and the Office of the Fair Work Ombudsman (Chapter 5); and
(e) deals with other matters relating to the above (Chapter 6).
Overview of the rest of this Chapter
(2) The rest of this Chapter deals with:
(a) definitions that are used in this Act (Part 1-2); and
(b) the application of this Act (Part 1-3), including how this Act interacts with certain State and Territory laws and its geographical application.
Definitions
(3) Many of the terms in this Act are defined. The Dictionary in section 12 contains a list of every term that is defined in this Act.
Application, saving and transitional provisions for amendments
(4) Schedule 1 contains application, saving and transitional provisions relating to amendments of this Act.
Section 45
Contravening a modern award
A person must not contravene a term of a modern award.
Note 1: This section is a civil remedy provision (see Part 4-1).
Note 2: A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1).
Section 340
Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 341
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument :
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer's leave;
(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
Exceptions relating to prospective employees
(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.
(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business).
Section 342
Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.2 a prospective employer against a prospective employee the prospective employer:
(a) refuses to employ the prospective employee; or
(b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.3 a person (the principal ) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor the principal:
(a) terminates the contract; or
(b) injures the independent contractor in relation to the terms and conditions of the contract; or
(c) alters the position of the independent contractor to the independent contractor's prejudice; or
(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(e) refuses to supply, or agree to supply, goods or services to the independent contractor.4 a person (the principal ) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor the principal:
(a) refuses to engage the independent contractor; or
(b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or
(c) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(d) refuses to supply, or agree to supply, goods or services to the independent contractor.5 an employee against his or her employer the employee:
(a) ceases work in the service of the employer; or
(b) takes industrial action against the employer.6 an independent contractor against a person who has entered into a contract for services with the independent contractor the independent contractor:
(a) ceases work under the contract; or
(b) takes industrial action against the person.7 an industrial association, or an officer or member of an industrial association, against a person the industrial association, or the officer or member of the industrial association:
(a) organises or takes industrial action against the person; or
(b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person's employment or prospective employment; or
(c) if the person is an independent contractor--takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or
(d) if the person is a member of the association--imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).
(2) Adverse action includes:
(a) threatening to take action covered by the table in subsection (1); and
(b) organising such action.
(3) Adverse action does not include action that is authorised by or under:
(a) this Act or any other law of the Commonwealth; or
(b) a law of a State or Territory prescribed by the regulations.
(4) Without limiting subsection (3), adverse action does not include an employer standing down an employee who is:
(a) engaged in protected industrial action; and
(b) employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.
Section 361
Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Section 386
Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.
Proceedings before this Court
The proceedings in this Court were brought after a certificate was issued under s.368 of the Act, dated 1 July 2016 by the Fair Work Commission in relation to the allegation by the applicant that he was dismissed by the respondent in contravention of Part 3.2 Division 3 of the Act.
The Quarrying Award 2010 relevantly provides clauses 2.1 - 2.4, 4.1, 7.1, 12, 13, 16, 22 and 28 as follows:-
Clause 2.1
This award commences on 1 January 2010
Clause 2.2
The monetary obligations imposed on employers by this award may be absorbed into overaward payments. Nothing in this award requires an employer to maintain or increase any overaward payment.
Clause 2.3
This award contains transitional arrangements which specify when particular parts of the award come into effect. Some of the transitional arrangements are in clauses in the main part of the award. There are also transitional arrangements in Schedule A.
The arrangements in Schedule A deal with:
- overtime
- hours of work
- shift allowances/penalties.
Clause 2.4
Neither the making of this award nor the operation of any transitional arrangements is intended to result in a reduction in the take-home pay of employees covered by the award. On application by or on behalf of an employee who suffers a reduction in take-home pay as a result of the making of this award or the operation of any transitional arrangements, the Fair Work Commission may make any order it considers appropriate to remedy the situation.
Clause 4.1
This industry award covers employees throughout Australia in the quarrying industry and their employees in the classifications listed in clause 16 – Classifications to the exclusion of any other modern award.
Clause 7.1
Notwithstanding any other provision of this award, an employer and an individual employee may agree to vary the application of certain terms of this award to meet the genuine individual needs of the employer and the individual employee. The terms the employer and the individual employee may agree to vary the application of are those concerning:
(a) arrangements for when work is performed;
(b) overtime rates;
(c) penalty rates;
( d) allowances; and
(e) leave loading.
Clause 9 Dispute Resolution
Clause 9.1
In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the patties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.
Clause 9.2
If a dispute about a matter arising under this award or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 9.1 have been taken, a patty to the dispute may refer the dispute to the Fair Work Commission.
Clause 9.3
The parties may agree on the process to be utilised by the Fair Work Commission including mediation, conciliation and consent arbitration.
Clause 9.4
Where the matter in dispute remains unresolved, the Fair Work Commission may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.
Clause 9.5
An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.
Clause 9.6
While the dispute resolution procedure is being conducted, work must continue in accordance with this award and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
Clause 12 Part-time employees
Clause 12.1
A part-time employee is an employee who:
(a) works less than 38 hours per week; and
(b) works a regular number of ordinary hours each week.
Clause 12.2
At the time of first being employed, the employer and the part-time employee will
agree, in writing, on a regular pattern of work, specifying at least:
• the hours worked each day;
•which days of the week the employee will work; and
•the actual starting and finishing times of each day.
Clause 12.3
Any agreement to vary the regular pattern of work will be made in writing before the variation occurs.
Clause 12.4
The agreement and variation will be retained by the employer and a copy given to the employee.
Clause 12.5
An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.
Clause 12.6
An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13-Casual employees.
Clause 12.7
A part-time employee employed under the provisions of this clause will be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed.
Clause 12.8
All time worked in excess of the hours mutually arranged will be overtime and paid for at the appropriate overtime rate.
Clause 13 Casual employees
Clause 13.1
A casual employee is an employee employed and paid as such.
Clause 13.2
A casual employee:
(a) must be paid an hourly rate of 1/38th of the weekly ordinary time rate of pay for the classification in which they are employed in, plus a casual loading of 25%; and
(b) must be paid for a minimum of three hours each day they are employed.
Clause 13.3
The casual loading is instead of annual leave, personal/carer's leave, notice of termination, redundancy benefits and the other attributes of full-time or part-time employment.
Clause 13.4
Casual conversion to full-time or part-time employment
(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment, under this award during a period of six months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.
(b) Every employer of such an employee must give the employee notice in writing of the provisions of clause 13.4 within four weeks of the employee having attained such period of six months. The employee retains their right of election under clause 13.4 if the employer fails to comply with clause 13.4(b).
(c) Any such casual employee who does not within four weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.
(d) Any casual employee who has a right to elect under clause 13.4(a), on receiving notice under clause 13.4(b) or after the expiry of the time for giving such notice, may give four weeks notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within four weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.
(e) Once a casual employee has elected to become and been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.
(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 13.4(d), the employer and employee must, subject to clause 13.4(d), discuss and agree on:
(i) which form of employment the employee will convert to, being full –time or part-time; and
(ii) if it is agreed that the employee will become a pait-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 12-Pait-time employees.
(g) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to conve1t their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed on between the employer and employee.
(h) Following such agreement being reached, the employee converts to full -time or part-time employment.
(i) Where, in accordance with clause 13.4(d) an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
(j) By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 13.4(a) as if the reference to six months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the two months prior to the period of six months referred to in clause 13 .4( a).
(k) For the purposes of clause 13.4, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.
Clause 13.5
An employee must not be engaged and re-engaged to avoid any obligation under this award.
Clause 16 Classifications
Clause 16.1
All employees covered by this award must be classified according to the structure set out in Schedule B-Classification Descriptors. Employers must advise their employees in writing of their classification and any changes to their classification.
Clause 16.2
The classification by the employer must be according to the skill level or levels required to be exercised by· the employee in order to carry out the principal functions of the employment as determined by the employer.
Clause 22 Superannuation
Clause 22.1
Superannuation legislation
(a) Superannuation legislation, including the Superannuation Guarantee (Administration) Act 1992 (Cth), the Superannuation Guarantee Charge Act 1992 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth) and the Superannuation (Resolution of Complaints) Act 1993 (Cth), deals with the superannuation rights and obligations of employers and employees. Under superannuation legislation individual employees generally have the opportunity to choose their own superannuation fund. If an employee does not choose a superannuation fund, any superannuation fund nominated in the award covering the employee applies.
(b) The rights and obligations in these clauses supplement those in superannuation legislation.
Clause 22.2
Employer contributions
An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.
Clause 22.3
Voluntary employee contributions
(a) Subject to the governing rules of the relevant superannuation fund, an employee may, in writing, authorise their. employer to pay on behalf of the employee a specified amount from the post-taxation wages of the employee into the same superannuation fund as the employer makes the superannuation contributions provided for in clause 22.2.
(b) An employee may adjust the amount the employee has authorised their employer to pay from the wages of the employee from the first of the month following the giving of three months' written notice to their employer.
(c) The employer must pay the amount authorised under clauses 22J(a) or (b) no later than 28 days after the end of the month in which the deduction authorised under clauses 22.3(a) or (b) was made.
Clause 22.4
Superannuation fund
Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 22.2 to another superannuation fund that is chosen by the employee, the employer must make the superannuation contributions provided for in clause 22.2 and pay the amount authorised under clauses 22.3(a) or (b) to one of the following superannuation funds or its successor:
(a) Australian Super;
(b) CareSuper;
(c) Sunsuper;
(d) BUSS(Q);
(e) AUST(Q);
(f) Tasplan;
(g) Building Employers Superannuation Trust;
(h) any superannuation fund to which the employer was making superannuation contributions for the benefit of its employees before 12 September 2008, provided the superannuation fund is an eligible choice fund and is a fund that offers a MySuper product or is an exempt public sector scheme; or
(i) a superannuation fund or scheme which the employee 1s a defined benefit member of.
Clause 28 Overtime
Clause 28.1
Payment
Subject to clause 28.3 and 28.4, for all work performed by an employee outside of and/or in excess of their ordinary hours the employee must be paid at the rate of time and one half for the first two hours and double time thereafter. Provided that, for work done on a Sunday an employee must be paid at the rate of double time with a minimum payment for four hours’ work.
Such double time is to continue until the completion of the overtime worked.
Clause 28.2
Day stands alone
Except as provided in clause 28.3, in computing overtime each day’s work will stand alone.
Clause 28.3
Ten hour rest period
(a) Where overtime work is necessary it will, wherever reasonably practicable, be so arranged that the employee has at least I 0 consecutive hours off duty between the work of successive days.
(b) Where the employee works so much overtime between the end of their ordinary work on one day and the commencement of their ordinary work on the next day that they have not had at least 10 consecutive hours off duty between those times they will be released after completion of such overtime until they have had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
(c) Where, if on the instruction of the employer, the employee resumes or continues work without having had such 10 consecutive hours off duty, the employee will be paid at double their ordinary time rate of pay until they are released from duty for such period and the employee will then be entitled to be absent until they have had I 0 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
Clause 28.4
Eight hour rest period for shift workers
The provisions of clause 28.3 will apply in the case of shift workers who rotate from one shift to another as if eight hours were substituted for 10 hours when overtime is worked:
(a) for the purpose of changing shift rosters; or
(b) where a shift worker does not report for duty.
Clause 28.5
Call-back
(a) If an employee is recalled to work overtime after leaving the quarry or operation (whether notified before or after leaving) the employee must be paid for a minimum of four hours' work (whether worked or not) or where the employee has been paid for standing by the employee must be paid a minimum of three hours' pay at the appropriate rate.
(b) This clause will not apply in cases where it is customary for the employee to return to the quarry or operation to perform a specific job outside their ordinary working hours or where the overtime is continuous (subject to a reasonable meal break) with the completion or commencement of ordinary working time.
(c) Overtime worked in the circumstances set out above, will not be regarded as ove1time for the purposes of clause 28.6 when the actual time worked is less than three hours on each such recall.
(d) If the employee is directed to hold themself in readiness to work after their ordinary hours the employee must be paid stand-by time, at ordinary rates of pay, until released.
Clause 28.6
Overtime breaks
If an employee is required to work ove1time for two hours after their normal ceasing time (and for each four hours thereafter) the employee must be provided with a 30 minute break without loss of pay, provided that overtime work continues after any such break.
Clause 28.7
Weekend overtime breaks
Where ove1time is worked on a Saturday or Sunday and it continues after 12 noon, the employee must be given a paid break for a meal of 30 minutes between 12 noon arid 1.00 pm, provided that the work continues after the meal break.
Clause 28.8
Weekend minimum
If an employee is required to work overtime on a Saturday or Sunday the employee must be given at least four hours' work or receive four hours' pay.
Clause 28.9
Time off instead of payment for overtime
(a) An employee and employer may agree in writing to the employee taking time off instead of being paid for a particular amount of ove1time that has been worked by the employee.
(b) Any amount of ove1time that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause 28.9.
(c) An agreement must state each of the following:
(i) the number of overtime hours to which it applies and when those hours were worked;
(ii) that the employer and employee agree that the employee may take time off instead of being paid for the ove1time;
(iii) that, if the employee requests at any time, the employer must pay the employee, for overtime covered by the agreement but not taken as time off, at the overtime rate applicable to the ove1time when worked;
(iv) that any payment mentioned in subparagraph .(iii) must be made in the next pay period following the request.
Note: An example of the type of agreement required by this clause is set out at Schedule I. There is no requirement to use the form of agreement set out at Schedule I. An agreement under clause 28.9 can also be made by an exchange of emails between the employee and employer, or by other electronic means.
(d) The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.
EXAMPLE: By making an agreement under clause 28.9 an employee who worked 2 overtime hours is entitled to 2 hours’ time off.
(e) Time off must be taken:
(i) within the period of 6 months after the overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the employee and employer.
(f) If the employee requests at any time, to be paid for overtime covered by an agreement under clause 28.9 but not taken as time off, the employer must pay the employee for the ove1time, in the next pay period following the request, at the ove1time rate applicable to the overtime when worked.
(g) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in paragraph (e), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the ove1time when worked.
(h) The employer must keep a copy of any agreement under clause 28.9 as an employee record.
(i) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.
(j) An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 28.9 will apply, including the requirement for separate written agreements under paragraph (b) for overtime that has been worked.
Note: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).
(k) If, on the termination of the employee's employment, time off for overtime worked by the employee to which clause 28.9 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.
Note: Under section 345(1) of the Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 28.9.
The principles to be applied in relation to determining whether there has been adverse action have been identified in the High Court of Australia decision of Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 relevantly at paragraphs [5], [41] – [45] and [127]. Relevantly, the Court must determine whether on the balance of probabilities, the alleged adverse action has occurred. There is then a presumption under s.361 of the Act, if adverse action is established that it was for a prohibited reason and the onus is on the respondents to establish that the adverse action taken was not for a prohibited reason.
Assessment of Mr Ward’s evidence
Mr Ward gave evidence that he saw an advertisement for the position of quarry worker for a full-time position, Monday to Friday from 7:30 am to 4:00 pm. Mr Ward in substance contends that an interview on 8 May 2015 gave rise to him being offered full time employment and that he commenced full time employment on 18 May 2015. Mr Ward was not an impressive witness and to the extent that his evidence is in conflict with that of the witnesses of the respondent, I prefer the witnesses of the respondent.
Mr Ward initially sought to evade a response to the question asked by the Court as to the fact that Mr Ward must have known he was a casual employee if he was on casual rates. The argumentative response is consistent with the applicant’s continued assertion of being a full-time employee in circumstances where he acknowledged that he knew he was a casual employee. I do not accept that Mr Ward was offered or accepted full-time employment on 18 May 2015. It is contrary to the evidence of Mr Floyd, who explained that the applicant was given an opportunity to either take full-time employment or pursue the position of a casual employee with the advantage of higher casual rates. It is apparent from the evidence of Mr Floyd which I accept, that that was the position namely, that Mr Ward accepted work as a casual employee.
I reject the assertion that Mr Ward was under any misapprehension that his employment was other than as a casual employee and that this was identified in his contract of employment. The contract of employment made clear that he was employed in a position of a casual quarry worker, Grade 4. It identified the casual hourly rate. It identified a minimum hours per day as a casual employee between 7:30 am to 4:00 pm, Monday to Friday. It also identified terms in relation to termination in which the casual employee is to give one day’s notice. It is of relevance in that regard, that even at the time that Mr Ward decided to resign, he acknowledged the contractual terms in relation to which it was one day’s notice that he was required to give at the time he decided to resign on 13 April 2016.
Consideration
At no time did the respondent dismiss Mr Ward. Towards the end of March 2016 and early April 2016, Mr Ward adopted the position that he was and should be treated as a full-time employee and not as a casual employee. Mr Ward decided that he would not return back to work unless he was assured that he would be treated as a full-time employee. Mr Ward had no entitlement under the contract to be so treated.
Mr Ward attended a meeting on 13 April 2016 with a pre-prepared letter of resignation. Mr Ward attended that meeting with the intention that unless he was given full-time employment, he was going to resign. That was Mr Ward’s choice. Mr Ward was not forced into resignation nor, was there any constructive dismissal of Mr Ward on the evidence before the Court.
Mr Ward referred to the fact that there was a discussion between him and Mr Bayliss on 6 April 2016 in which the applicant was relevantly told:-
“You can knock off now Tony. Things are a little slow at the moment. I’ll give you a call either this afternoon or the next day for work in the future.”
The applicant responded:-
“Yep, no worries.”
That conversation in no way gave rise to the dismissal of Mr Ward and the assertion by Mr Ward that he believed it to be his dismissal, I find is not true. If Mr Ward had believed he had been dismissed on 6 April 2016, it is inconceivable that he would not have identified that in his letter of 13 April 2016. The proposition that Mr Ward was constructively dismissed is without substance. The proposition that Mr Ward’s position was altered in March 2016 and early April 2016 is also without substance.
On the evidence before the Court, Mr Ward was not competent to perform the duties of the Award Level 5. The Award makes clear that that competence is a matter to be determined by the employer. There had been no determination the applicant was so competent and Mr Floyd gave evidence as to reasons why Mr Ward had not yet reached that level of competence.
Mr Ward was not the subject of any discriminatory treatment between him and other employees. Mr Ward was not denied access to overtime as a casual. It was open to the respondent to inform a casual employee that they were no longer required at particular times. There was no adverse action by the employer telling Mr Ward that he was not required full-time, being a casual employee.
In relation to the issuing of the warnings that occurred in respect of Mr Ward, one related to a failure to wear safety equipment namely, a wide brimmed sunhat issued to the applicant and the other related to the danger of driving of a vehicle. Both incidents clearly occurred and both incidents are ones in respect of which it was proper and appropriate for the respondent to take such action.
Mr Ward referred to the proposition that if he failed to adhere to their policy in relation to safety that he could not work with the respondent. That is a sensible and appropriate policy and it is one where it is very much an interest of all the employees that they abide the safety policies of the company. There was no unjustified warning issued to the applicant. The proposition that the applicant was threatened with dismissal is without substance and there was no adverse action taken against the applicant.
In relation to the applicant being told to hand over keys that belonged to the respondent, that is not a matter that gives rise to any adverse action having been taken by the respondent. Evidence was given that Mr Floyd said that the respondent could not take keys home anymore. That was entirely a matter within the ordinary administration and organisation of the respondent. It was not discriminatory or adverse action which was taken against the applicant.
I do not accept that the respondent altered the applicant’s duties nor, that there was any alteration of employment arrangements so that the applicant was no longer required. The applicant had been engaged as a casual employee and continued to be a casual employee throughout the period of employment that was identified.
Consideration of the alleged dismissal of the applicant
Documents were tendered that identified the applicant did not work full time for the whole of the period of his employment and his hours of attendance were consistent with the applicant being a casual employee. There was no dismissal of the applicant that occurred on 6 April 2016.
Consideration of the alleged failure to pay the applicant
The applicant was from time to time paid overtime. I do not accept that there was any failure to pay overtime as alleged by the applicant in the sum of $278.45. There is no basis for the calculation and on the evidence the applicant was from time to time, paid overtime in accordance with the Award.
Consideration of contravening a modern award
In relation to the applicant’s complaints in respect of his qualifications as a Grade 4 quarry worker and that he should have been upgraded to Grade 5, that was a matter for the employer. There was no breach of s.45 of the Act in relation to the allegations advanced by the applicant in respect of his classification. On the evidence before the Court, the applicant remained a Grade 4 quarry worker under the Award and was paid accordingly. No contravention of s.45 of the Act is made out.
Consideration of alleged adverse action taken by the respondent
For the reasons already given, there was no adverse action taken by the respondent against the applicant. Further, on the evidence before the Court, I accept the evidence of Mr Floyd that the applicant was not treated differently because of raising any workplace rights and that there had been no decision by the respondent to terminate the employment of the applicant at the time of his voluntary resignation. I accept Mr Floyd’s evidence that the advertisement that had been placed was not for the applicant’s position and was unrelated to any conduct of the applicant. The applicant had decided to try and force the respondent into treating him as a full-time employee. The applicant had no such entitlement. It was the applicant who then pre-prepared his own letter of resignation which he produced at the meeting when the applicant was not assured that he would be treated as a full-time employee, to which the applicant had no right.
Consideration of alleged dismissal of the applicant
I find that the respondent has discharged its onus under s.361 of the Act in relation to the disciplinary warnings taken in relation to the applicant, the taking of the applicant’s keys, the opportunity to work overtime, the work offered by the respondent to the applicant as a casual employee. I find there was no contravention of s.340 of the Act. For the reasons I have already given, I find there was no dismissal of the applicant by the respondent.
At the commencement of the case, the Court explained to the applicant that the relevant issues were an allegation of adverse action and the contravention of s.340 of the Act and an alleged contravention of the award in respect of s.45 of the Act. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the respondent and then hear submissions from the applicant in reply.
The Court foreshadowed time limits in relation to cross-examination which was limited to half an hour without further leave and time limits in relation to oral submissions were limited of half an hour without further leave. The parties had both filed written submissions. Mr Ward was the subject of cross-examination and the evidence given by Mr Ward in cross-examination contradicted his assertion of being a full-time employee and contradicted his assertion of having been dismissed by the respondent.
Conclusion
Mr Ward made his own decision to try and insist on being treated as a full-time employee in circumstances where he knew he was a casual employee and knew he was being paid accordingly. I also accept Mr Floyd’s evidence that consistent with the Quarrying Award 2010, Mr Ward was given the opportunity after six months to become a permanent employee and continued to maintain his preference and desire to remain employed as a casual employee. The employer had no obligation thereafter to change the casual nature of the applicant’s employment. Mr Floyd’s evidence was in substance corroborated by that of Mr Bayliss, Mr Gardiner and Mr Horgan. I find each of the respondent’s witnesses to be witnesses of truth.
The application is dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 25 January 2017
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