INDUSTRIAL LAW – application by an employer for declarations that an employee could not claim the National Employment Standards entitlements to paid annual leave, personal/carer’s leave and compassionate leave because he was a casual employee within the meaning of ss 86, 95 and 106 of the Fair Work Act 2009 (Cth) (the FW Act), and could not claim the corresponding entitlements under the applicable enterprise agreement because he was a “Casual Field Team Member” (casual FTM) – consideration of the character of the employee’s employment – consideration of the expression “firm advance commitment” used in some authorities in relation to casual employment – employee not a casual employee for the purposes of the FW Act or a casual FTM under the enterprise agreement.
RESTITUTION – employer paid employee at a flat hourly rate in accordance with contracts of employment, which the employer claimed included an identifiable casual loading – employer claimed that if the Court found that the employee was not a casual employee for the purposes of the FW Act or a casual FTM under the enterprise agreement, it was entitled to restitution of the casual loading as the employee was unjustly enriched – employer sought restitution on the grounds of mistake and failure of consideration – restitution not available.
INDUSTRIAL LAW – employer claimed that if the Court found that the employee was not a casual employee for the purposes of the FW Act or a casual FTM under the enterprise agreement, it was entitled to bring into account amounts it paid to him as remuneration against the entitlements he claimed – whether the employer was entitled to have some portion of its payments of remuneration to the employee brought into account in discharge of its obligations to pay the entitlements he claimed – consideration of when an employer’s payments made under contract to an employee may operate to discharge its statutory obligations to the employee – employer’s payments of wages were not for the purpose of discharging statutory obligations to give the employee paid leave entitlements – consideration of reg 2.03A of the Fair Work Regulations 2009 (Cth) – employer not entitled to bring amounts into account.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
WorkPac Pty Ltd v Rossato [2020] FCAFC 84
Case
[2020] FCAFC 84
Decision Date
CaseChat Overview and Summary
WorkPac Pty Ltd sought a declaration that Mr Rossato, an employee, was not entitled to certain leave entitlements as a casual employee under the Fair Work Act 2009 (Cth) (FW Act) and an enterprise agreement. The court examined the character of Mr Rossato’s employment to determine if he was a casual employee under the FW Act and a “Casual Field Team Member” under the enterprise agreement. The court found that Mr Rossato was not a casual employee or a casual FTM. Therefore, he was entitled to paid annual leave, personal/carer’s leave, compassionate leave, and payments for public holidays under the FW Act and the enterprise agreement. The court also ruled that WorkPac could not claim restitution of a casual loading it paid to Mr Rossato or set off any part of the remuneration it paid against Mr Rossato’s entitlements.
The court considered whether WorkPac could claim restitution of the casual loading it paid Mr Rossato and whether it could set off the remuneration it paid against Mr Rossato’s entitlements. The court found that WorkPac was not entitled to restitution as the employee was not unjustly enriched. The court also found that WorkPac’s payments of remuneration to Mr Rossato were not for the purpose of discharging its statutory obligations to him, and therefore, WorkPac was not entitled to set off any part of the remuneration it paid against Mr Rossato’s entitlements.
The court concluded that Mr Rossato was not a casual employee or a casual FTM under the FW Act and the enterprise agreement, and therefore, he was entitled to paid annual leave, personal/carer’s leave, compassionate leave, and payments for public holidays. WorkPac was not entitled to restitution of the casual loading it paid to Mr Rossato or to set off any part of the remuneration it paid against Mr Rossato’s entitlements. The court ordered the parties to confer to agree on the terms of the declarations and orders appropriate to give effect to the court’s judgment. If the parties could not agree, the court would determine the terms of the declarations and orders and any application for costs on the papers.
Orders
Orders of the court
1. The Applicant and Respondent confer by 26 May 2020 with a view to reaching agreement on the terms of the declarations and orders appropriate to give effect to the Court’s judgment and by 27 May 2020 file the minutes of the proposed declarations and orders on which they agree.
2. In the absence of agreement –
(a) by 27 May 2020 each of the Applicant and the Respondent file and serve the terms of the declarations and orders which it is proposed will give effect to the Court’s judgment together with a written submission in support, not exceeding three pages; and
(b) by 3 June 2020 the Applicant and the Respondent, if so advised, file and serve any submissions in reply, not exceeding three pages.
3. Any party or Intervener seeking an order for costs is by 27 May 2020 to file and serve a written submission, not exceeding three pages, setting out the order sought and any submissions in support.
4. Any party or Intervener opposing an order for costs is by 3 June 2020 to file and serve a written submission, not exceeding three pages, in opposition.
5. The Court will determine any outstanding issues concerning the terms of the declarations and orders and any application for costs 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
The facts in this proceeding are largely uncontested and were set out in a Statement of Agreed Facts and an addendum to that Statement (“agreed facts”). Summary of Conclusions I have had the very significant benefit of reading in draft, the separate reasons of each of White and Wheelahan JJ. I respectfully agree with the dispositive conclusion reached by their Honours on each of the matters in issue. In relation to many of the issues I need to address, I have provided my own reasons. Where indicated, I have gratefully adopted the reasoning of White J or Wheelahan J. For the reasons that follow I have concluded that:(i)In each of his employments with WorkPac, Mr Rossato was “other than a casual employee” within the meaning of ss 86, 95 and 106 of the FW Act and not excluded from the entitlements to paid annual leave, paid personal/carer’s leave and paid compassionate leave provided in Divs 6 and 7 of Pt 2-2 of the FW Act and payments for public holidays in accordance with s 116 of the FW Act; and(ii)In each of his employments with WorkPac, Mr Rossato was a “Permanent FTM” and not a “Casual FTM” for the purposes of the Enterprise Agreement and was entitled to paid annual leave, paid personal/carer’s leave and paid compassionate leave and payment for public holidays in accordance with that Agreement. WorkPac has not made payments to Mr Rossato in discharge of his outstanding entitlements to paid annual leave, paid personal/carer’s leave, paid compassionate leave or for public holidays and is not entitled to the “set-off” it claims. WorkPac is not entitled to restitution of the monies it claims, either on the basis of a failure of consideration or on the basis of mistake. Having reached those conclusions, subject to providing the parties with an opportunity to address the final form of the declarations that should be made and on the basis that WorkPac and Mr Rossato have informed the Court that they will agree the quantum of the following entitlements, I would make the following declarations:(a)In the period between 28 July 2014 and 9 April 2018, Mr Rossato was employed by WorkPac under six consecutive contracts of employment constituted by his acceptance of offers of employment dated 17 July 2014, 29 May 2015, 19 February 2016, 27 September 2016, 11 November 2016 and 21 December 2016 respectively;(b)In his employment under each of the contracts, Mr Rossato was other than a casual employee for the purposes of ss 86, 95 and 106 of the FW Act and was a “Permanent FTM” and not a “Casual FTM” for the purposes of the Enterprise Agreement;(c)Mr Rossato is entitled, pursuant to s 90(2) of the FW Act, to payment in respect of his accrued entitlement to paid annual leave;(d)Mr Rossato is entitled, pursuant to ss 99 and 106 of the FW Act and pursuant to cll 19.7‑19.9 and 19.12 of the Enterprise Agreement, to payment in respect of his absences from work for which he should have been paid personal/carer’s leave and compassionate leave; and(e)Mr Rossato is entitled, pursuant to s 116 of the FW Act and cl 20 of the Enterprise Agreement, to payment in respect of those public holidays on which, but for the Christmas shutdowns, he would have been rostered to work.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
For the above reasons, reg 2.03A has no application to the resolution of the substantive questions that arise in relation to WorkPac’s claim to offset any part of the remuneration that it paid to Mr Rossato against the entitlements that he claims.Conclusion Subject to hearing from the parties, I agree with the declarations proposed by Bromberg J, and would otherwise dismiss WorkPac’s claims.
Ratio Decidendi
Legal Principle Established
Mr Rossato first engaged with WorkPac by completing its online web registration form on 21 December 2013, following this, on 23 December 2013 Mr Rossato went to WorkPac’s office in Mackay where he communicated his interest to work for WorkPac at the Collinsville Mine site. At that meeting Mr Rossato signed a copy of a document headed “Casual or Maximum Term Employee Terms & Conditions of Employment - Employee Declaration” (“Employee Declaration”). By signing the Employee Declaration, Mr Rossato declared that he had read and understood a document titled “Casual or Maximum Term Employee - Terms and Conditions of Employment” (“General Conditions”). Mr Rossato commenced employment with WorkPac on 28 July 2014. Although it is not entirely clear, the better view is that the three and a half years of Mr Rossato’s continuous employment with WorkPac was performed pursuant to six “assignments” or employments under six separate contracts of employment. It is accepted that the written terms of each of those contracts are contained in two documents. The first, the General Conditions, an umbrella document applicable to each of the six contracts, and the second, a Notice of Offer (“NOCE”) which was applicable to each particular contract (“First to Sixth NOCE”). Under the First Contract, Mr Rossato was employed to work at the Collinsville Mine between 28 July 2014 and 29 May 2015. He then moved to the Newlands Mine and under the Second Contract worked at that mine between 1 June 2015 and 19 February 2016. The Third Contract involved little more than a change in Mr Rossato’s rate of pay and under that contract Mr Rossato continued to work at the Newlands Mine between 19 February 2016 and 27 September 2016. Mr Rossato then moved back to the Collinsville Mine and under the Fourth Contract was employed from 27 September 2016 to 10 November 2016. The fifth and sixth contracts were also concerned with work at the Collinsville Mine and in each case were motivated by a change in Mr Rossato’s pay rate. The Fifth Contract covered the period 14 November 2016 to 21 December 2016. The Sixth Contract covered the period 21 December 2016 until Mr Rossato’s retirement on 9 April 2018. The Collinsville Mine and the Newlands Mine to which I have referred were each operated by Glencore Australia Pty Ltd and its related entities (“Glencore”). At all relevant times and at each of those mines, Glencore had a workforce structure for its production workforce which included both its own employees and an appreciable component of production employees sourced through a labour hire company like WorkPac. The production employees employed by Glencore were “permanent” or on-going indefinite employees of Glencore. Throughout his employments with WorkPac, Mr Rossato worked as part of the production workforce at either the Collinsville Mine or the Newlands Mine. Like many other employees of WorkPac, his service was provided by WorkPac to Glencore to meet Glencore’s requirement for production workers at those coal mines.