INDUSTRIAL LAW – National Employment Standards – entitlement to annual leave in Div 6 of Pt 2-2 of the Fair Work Act 2009 (Cth) (“FW Act”) – s 86 of the FW Act which provides that Div 6 “applies to employees, other than casual employees” – meaning of casual employee in s 86 of the FW Act – whether employee’s claim for annual leave excluded because the employee was a casual employee within the meaning of s 86 –whether “casual employee” has its legal meaning or an asserted specialised industrial meaning, namely, a person designated to be such an employee by the applicable industrial instrument – discussion of meaning of the term “casual employee” – discussion of whether there is a uniformly understood specialised meaning of the expression “casual employee” referable to the use of that term in industrial awards – where asserted specialised meaning would provide incomplete meaning to the expression “casual employee” because does not address “award/agreement free employees” – whether undefined single expression intended to have a dual or compound meaning – discussion of the statutory context and purpose of paid annual leave as provided for under the National Employment Standards – discussion of the historical statutory application and judicial consideration of the term “casual employee” – whether the term “casual employee” has acquired a legal meaning - discussion of the interaction between the National Employment Standards and a modern award or an enterprise agreement – consideration of the expression “long term casual employee” as defined in s 12 of the FW Act – whether employment “on a regular… basis” means constancy of work or regularity of hiring – whether regular employment is necessarily inconsistent with the characterisation of the employment as casual – discussion of the indicia of casual employment – whether indicia identified by the authorities excluded by the statutory context of Div 6 of Pt 2-2 of the FW Act – casual employment distinguishable from full-time and part-time employment – whether nature of the employment as casual employment is to be objectively assessed to take account of its real or true character – significance of the absence of an advance commitment to continuing and indefinite work to the characterisation of an employment as casual employment – whether the payment of a casual loading or employment by the hour or on an hour’s notice determinative of casual employment
INDUSTRIAL LAW – employee employed under transitional instrument (“Agreement”) – whether employee entitled to annual leave under the Agreement – whether employee excluded from entitlement to annual leave under the Agreement because a casual employee – meaning of casual employee under the Agreement – whether by providing that the employer…
Grounds of appeal
[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 Skene [2018] FCAFC 131
Case
[2018] FCAFC 131
Decision Date
CaseChat Overview and Summary
In the case of WorkPac Pty Ltd v Skene, the applicant, Mr Skene, sought declarations that he was entitled to annual leave and that WorkPac Pty Ltd had failed to provide such leave in accordance with the Fair Work Act 2009 (Cth) ("FW Act") and a transitional agreement ("Agreement"). The primary legal issues centred around the interpretation of the term "casual employee" in section 86 of the FW Act, which excludes casual employees from the entitlement to annual leave under Division 6 of Part 2-2 of the FW Act. The court examined whether the term "casual employee" had its ordinary legal meaning, a specialised industrial meaning, or a dual or compound meaning. The court also considered the interaction between the National Employment Standards and the Agreement, as well as the applicability of pecuniary penalties for failure to provide entitlements to annual leave.
The court found that the term "casual employee" in section 86 of the FW Act should be interpreted in its ordinary legal sense, and not as having a specialised industrial meaning. The court reasoned that the term "casual employee" was undefined in the FW Act and that there was no indication that Parliament intended for it to have a dual or compound meaning. The court also held that the absence of an advance commitment to continuing and indefinite work was a significant indicium of casual employment. Furthermore, the court found that the Agreement did not provide that a casual employee is a person designated to be such by the employer, and that casual employment was distinguishable from full-time and part-time employment. The court concluded that the primary judge's finding that close consideration had been given to the legality of the employment arrangements was erroneous, and that the matter should be remitted to the Federal Circuit Court for the determination of compensation and any pecuniary penalties to be imposed.
The appeal was allowed, and the orders of the Federal Circuit Court were set aside. The proceeding was remitted to the Federal Circuit Court for the determination of compensation payable to the appellant and any pecuniary penalties to be imposed on the respondent.
Orders
Orders of the court
1. The appeal is allowed.
2. Orders 1 and 2 of the orders of the Federal Circuit Court of Australia made on 21 March 2017 be set aside.
3. The proceeding be remitted to the Federal Circuit Court of Australia for the determination, in accordance with the reasons of the Court, of:
(a) the compensation payable to the appellant; and
(b) any pecuniary penalties to be imposed on the respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Mr Skene seeks declarations that he was entitled to annual leave in accordance with cl 19.1.1 of the Agreement and that WorkPac failed to pay annual leave to him in accordance with the National Employment Standards and thereby contravened s 44 of the FW Act. Mr Skene seeks that the matter be remitted to the Federal Circuit Court for further consideration as to compensation and also the pecuniary penalties that should be imposed. THE JUDGMENT OF THE PRIMARY JUDGEThe findings of the primary judge The relevant facts are uncontroversial and the following account of them is largely taken from the reasons of the primary judge. It is not contested that the Agreement commenced operation in December 2007. The parties to the Agreement are expressed to be WorkPac and its FTMs who are all of WorkPac’s “on‑hire employees” (cls 1.2.1 and 1.2.2). Nor is it in contest that Pt 2–2 of the FW Act, containing the National Employment Standards, applied to WorkPac and to Mr Skene’s employment with WorkPac (if s 86 was inapplicable). In early April 2010, Mr Skene responded to an advertisement placed by WorkPac advertising a position as a truck driver at a coal mine in Central Queensland operated by Anglo Coal. Mr Skene was subsequently notified by WorkPac that his application for the advertised position was successful. He thereafter attended WorkPac’s offices on 16 April 2010 and was given a “Notice of Offer of Casual Employment”. Mr Skene executed a document entitled “Casual or Fixed Term Employee Terms & Conditions of Employment” (“Terms & Conditions of Employment Document”). From 19 April through to 17 July 2010, Mr Skene was employed by WorkPac at Anglo Coal’s mine as a dump-truck operator. His position was a “drive in, drive out position”, meaning that he had to transport himself to and from his workplace at the mine. That was a six hour drive each way from his home in South East Queensland. Mr Skene worked on rotation so that he worked a number of days and then had a number of consecutive days at home. The Terms & Conditions of the Employment Document executed by Mr Skene on 16 April 2010 relevantly included the following terms:1.The terms and conditions covered in this document provide general information regarding your engagement with Workpac Pty Ltd. Your specific entitlements will be determined by the award or agreement that covers your employment and these may vary from engagement to engagement depending on the type of work you perform. To view a copy of the relevant award and agreement please speak to your Workpac Pty Ltd representative. This document, once signed, has the force of law as a contract and will apply to all assignments with any member of the WorkPac Group of Companies, whether existing at the time of signing this document or later added to the membership of the Group.…2. INTERPRETATIONIn this agreement the terms below shall have the following meanings, unless their context otherwise requires:Employee:The individual employed on a Casual or Fixed Term basis by WorkPac as per the terms and conditions set out in this document, and the notice, to carry out work assignments under the direction or (sic) WorkPac’s clients.Client:The company, partnership, individual or agent that WorkPac does business with and where the employee will carry out duties as requested on behalf of WorkPac. The client shall be responsible for issuing the employee with work, safety and induction instructions.3. LOCATIONThis assignment applies for the engagement of the employee with any of WorkPac’s clients. Location of the client’s site and information for each separate assignment will be advised to the employee via the Notice of Offer of casual or Fixed Term Employment.These terms and conditions are to be read in conjunction with WorkPac’s Notice of Offer of Casual or Fixed Term Employment.4. DURATION OF AGREEMENT4.1The terms and conditions in this document commence on the date it is signed and continues in force until revoked by the employee or the employer.4.2The terms and conditions in this document apply to all assignments undertaken by the employee on behalf of WorkPac. The parties will not execute a new terms and conditions document for each separate assignment.5. CASUAL OR FIXED TERM EMPLOYMENT ASSIGNMENTS WITH WORKPAC5.1Employment with WorkPac is on an assignment-by-assignment basis, with each assignment representing a discrete period of employment on a Casual or Fixed Term hourly basis.…5.3 The employee may accept or reject any offer of an assignment.…5.11Casual employees will serve a 12 month probationary period and Fixed Term employees a 6 month probationary period.5.12A casual assignment with WorkPac may be terminated at any time by the giving of one (1) hours notice.…7.8 Annual LeaveAll fixed term permanent employees shall accrue annual leave at the rate of four weeks for each completed year of service.…