WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2015 WAIRC 00953

DELIVERED : THURSDAY, 22 OCTOBER 2015

FILE NO. : M 153 OF 2014

CLAIMANT

AND

S.E.T.S ENTERPRISES PTY LTD

FIRST RESPONDENT

KEVIN JAMES BROADBENT

SECOND RESPONDENT

Catchwords : Alleged non-payment of annual leave entitlements payable pursuant
to s 87(1)(a) of the Fair Work Act 2009 - Whether the claimant’s engagement was as a “casual” employee

Legislation : Fair Work Act 2009

Instruments : Mining Industry Award 2010 [MA000011]

  Miscellaneous Award 2010 [MA000104]

Result : Claim dismissed

Case(s) referred to
in Reasons : Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining
  and Energy Union
  [2013] FWCFB 2434
  Williams v MacMahon Mining Services Pty Ltd
  [2010] FCA 1321
  Melrose Farm Pty Ltd t/as Milesaway Tours v Milward
  [2008] WASCA 175
  Fair Work Ombudsman v Devine Marine Group Pty Ltd & Others
  [2014] FCA 1365
  Il Migliore Pty Ltd T/A Il Migliore v McDonald
  [2013] FWCFB 5759

 Hamzy v Tricon International Restaurants trading as KFC

[2001] FCA 1589

Representation  

Claimant : Mr A. Stewart (counsel) of Chapmans Barristers and Solicitors

Respondent : Ms C. Tsang (counsel) of Lavan Legal

REASONS FOR DECISION

1          The claimant alleges that his former employer, S.E.T.S Enterprises Pty Ltd (the first respondent), has in breach of s 44 of the Fair Work Act 2009 (the FW Act), failed to pay him his annual leave entitlements as required by the Mining Industry Award 2010 [MA000011] (Mining Award) and s 87(1)(a) of the FW Act. The claimant also alleges that Mr Kevin James Broadbent (the second respondent) who is the first respondent’s director, was involved in the breach and therefore is also liable.

2          The claimant says that he is owed $24,432.24 in unpaid annual leave entitlements as follows:

• 12 February 2010 to 18 August 2011 in the sum of $11,546.15 (first period); and

• 11 November 2011 to 30 June 2013 in the sum of $12,886.09 (second period).

3          He seeks payment of $24,432.24 together with pre-judgement interest thereon plus his costs.  The imposition of a penalty for the contravention of s 44 of the FW Act is also requested.

4          The first respondent and the second respondent deny that the Mining Award governed the claimant’s employment. They say that his employment was governed by the Miscellaneous Award 2010 [MA000104] (Miscellaneous Award). In any event, they deny that the claimant was entitled to the annual leave payments that he seeks. They maintain that the claimant was at all material times employed as a casual employee, and therefore not entitled to annual leave.

Undisputed Facts

5         Apart from being the first respondent’s director, the second respondent is a qualified emergency services officer, trainer and assessor, industrial paramedic, restricted quarry manager and security officer, holding a security agent’s licence.

6         The first respondent operates a personnel hire service. The type of personnel it provides to various industries includes emergency service officers, nurses, medical officers and qualified safety management officers. Such qualified employees are, sometimes at very short notice, drawn from the first respondent’s pool of available employees and supplied to external businesses for short to medium terms, dependent upon client needs. 

7         On 12 February 2010 the second respondent, on behalf of the first respondent, interviewed the claimant and offered him employment as an emergency services officer. That same day, the claimant signed a fixed term contract of employment which was to commence immediately and end on 30 December 2010. The contract made reference to “casual” employment and the absence of paid leave.

8         The claimant’s initial work engagement under the contract commenced on 12 February 2010 when he was sent to work as an emergency services officer on a BHP Billiton Limited (BHP) project in Western Australia’s north. That engagement required him to work on a fly-in, fly-out basis, generally two weeks on and two weeks off. Whilst on-site, the claimant was required to follow the directions of the external contractor to which he was assigned. The days and times he worked were entirely dictated by the operational requirements of the contractor. His rosters were created by the contractor.

9         On 30 December 2010, when the claimant’s fixed-term contract came to an end he was not asked to enter into a new contract. Rather, the first respondent continued to employ him as though the pre-existing contract continued to have effect. The claimant’s pay (save a CPI increase), employment conditions and other arrangements remained unaltered until 18 August 2011, when he resigned from his employment in order to take up a position with Fortescue Metals Group Ltd (FMG).

10      The claimant’s job with FMG did not last long, and as it was coming to an end, the claimant contacted the second respondent with a view to the first respondent re-employing him. The second respondent, on behalf of the first respondent, had no hesitation in re-employing him.  The second respondent was particularly impressed by the claimant’s previous excellent performance and in particular by the fact that he had made himself available to work outside of his rostered requirements.  His ready availability had been of significant benefit to the first respondent.

11      When the first respondent re-employed the claimant on 11 November 2011, a fresh written contract of employment was not prepared and the terms and conditions of his new engagement were not discussed.  Indeed, both parties proceeded on the basis that the previous pay rate and conditions of employment applied.

12      Following his re-engagement, the claimant initially worked on an FMG project for a short period before moving to the Redmont Camp on a BHP project. He also continued to make himself available to work outside his roster.

13      In or about July or early August 2013, the claimant noticed an annual leave accrual printed on his payslip and made immediate enquiries as to why the accrual of annual leave had not been recorded on his previous pay slips. Consequently, a meeting was arranged to discuss the issue. At that meeting, held on 5 August 2013, the claimant was informed that the leave accrual printed on his pay slip had occurred in error.  The claimant did not accept that and asserted that he was a permanent employee and therefore entitled to annual leave entitlements. It follows that the issue remained unresolved at that stage.

14      On 22 August 2013 Ms Jodie Beeson, of Beeson HR Consulting on behalf of the first respondent, wrote to the claimant stating inter alia that on 1 June 2011 the claimant had been provided with another fixed term employment agreement which contained a clause which stated that an allowance for annual leave had been built into his hourly rate, and the hourly rate was $50.00 per hour. She suggested that the conditions of his employment were governed by that agreement.  The claimant subsequently sought a copy of that contract and on 27 August 2013 Ms Beeson provided the claimant with a copy of an email, containing a copy of an unsigned contract, which had been sent by the first respondent to the claimant’s old email address. It suffices to say that the agreement was never signed or adopted and was of no effect.

15      The second respondent was, at that time concerned that the dispute could lead to the claimant withdrawing his services to the first respondent and was keen to ensure that did not occur.  The claimant’s ready availability to work at short notice and outside of his rostered employment was crucial to the first respondent’s ability to meet its client’ needs. This was at a time when workforce resources were scarce.  In an attempt to resolve the impasse, a mediation meeting attended by the claimant and Ms Beeson was held on 4 September 2013.  At that meeting the first respondent offered the claimant a new contract of employment which contained a provision for the payment of annual leave entitlements back-dated to 1 July 2013. His hourly rate and other conditions were, however, to remain the same.

16      On 12 September 2013 the claimant accepted that offer and signed the new contract.

17      On 5 December 2013, the claimant resigned his employment with the first respondent.  He subsequently received his termination pay which included his annual leave entitlements from   1 July 2013 until the termination. He did not however, receive annual leave payments for any preceding period of employment.

Issues

18      For reasons which follow it is apparent that the outcome in this matter turns on whether, at the material times, the claimant’s employment was on a casual basis. If it was, then his claim will be defeated. In order to determine this pivotal issue, a consideration of the following is required:

1. the award that covered  his employment; and
2. whether his employment was on a casual basis within the meaning of that award; and
3. if not, whether at common law his employment could be regarded as being on a casual basis.

Applicable Award

19      The claimant asserts that the Mining Award governed his employment, whereas the first respondent and the second respondent say that it was governed by the Miscellaneous Award.

20      Clause 4.1 of the Mining Award states:

“This industry award covers employers throughout Australia who are engaged in the mining industry in respect of work by their employees in a classification in this award and their employees engaged in the classifications listed in clause 13—Classifications and minimum wage rates, of this award, to the exclusion of any other modern award.”

21      “Mining industry” is defined in cl 4.2 of the Mining Award as including:

“For the purposes of this clause mining industry means:

(a)   extracting any of the following from the earth by any manner or method including exploration, prospecting, development and land clearing, preparatory work and rehabilitation during the life of the mine:

(i)            any metals, minerals or ores;

(ii)         phosphates and gemstones;

(iii)       mineral sands;

(iv)        uranium and other radioactive substances;

(b)   the processing, smelting and refining of the metals, minerals, ores or substances covered by clause 4.2(a);

(c)   the transportation, handling and loading of any of the metals, minerals, ores or substances covered by clause 4.2(a) on a mining lease or tenement;

(d)   the transportation, handling and loading of any of the metals, minerals, ores or substances covered by clause 4.2(a) by the mine operator, a related company or an entity principally engaged by the mine operator to do such work, using the plant or infrastructure (including rail and/or ports) of the mine operator or a related company;

(e)  the servicing, maintaining (including mechanical, electrical, fabricating or engineering) or repairing of plant and equipment used in the activities set out in clauses 4.2(a) to (d) by employees principally employed to perform work on an ongoing basis at a location where the activities described above are being performed; or

(f)    the provision of temporary labour services used in the activities set out in clauses 4.2(a) to (e), by temporary labour personnel principally engaged to perform work at a location where the activities described above are being performed.”

22      Whilst the first respondent provides temporary labour services to clients who are involved in the activities discussed in cl 4.2(a) to (e) of the Mining Award, the temporary labour services provided by the first respondent to those clients are not directly used in the activities set out in cl 4.2(a) to (e). The services provided by the first respondent are emergency services officers, security officers, nurses, medical officers and safety management personnel.

23      Clause 4.3(d)(ii) of the Mining Award provides that it does not cover employees in respect of their operations or activities in industries or occupations of:

“catering, accommodation, cleaning and incidental services (unless employed by a mine operator or a related company)”.

24      The claimant worked as an emergency services officer, providing incidental services to the mining industry but not direct services in mining.  Given that the claimant was not employed by a mine operator or a related company, cl 4.3(d)(ii) of the Mining Award appears to exclude the type of services provided.

25      For the purposes of cl 4.1 of the Mining Award, cl B2 of Schedule B - Classification and Structure of the Mining Award provides that it covers the following classifications:

•                  B.2.1 Mining Industry Services Employees;
•                  B.2.2 Mining Industry Surface Mining and Haulage Employees;
•                  B.2.3 Mining Industry Processing Employees;
•                  B.2.4 Mining Industry Underground Mine Employees; and
•                  B.2.5 Mining Industry Maintenance Trades Employees.

26      Clearly, none of the descriptions contained in cl B.2.2 to cl B.2.5 (inclusive) can have any application. The only possible coverage might arise from what is said in cl B.2.1, which states:

“B.2.1   Mining Industry Services Employees

A Mining Industry Services Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to: labouring; assisting work crews and tradespersons; operation of plant and equipment (including mobile plant); maintenance work on plant, equipment or buildings; performance of general plant, stores, workshop, warehouse, packaging, and marine interface tasks, resource assessment (including prospecting, drilling and exploration); preparing and cleaning equipment and materials; and on site catering cleaning and security.

This classification group also encompasses work performed by Laboratory Assistants, who do not hold tertiary qualifications.”

27      The first respondent and the second respondent submit that the services provided to their clients (including the claimant’s services as an emergency services officer) do not fall within cl B.2.1 of the Mining Award.

28      Clause B.2.1 of the Mining Award refers to services provided at mines and includes catering, cleaning and security.  It is self-evident that the clause does not contain an exhaustive list of services falling within the classification. The question which arises therefore is whether the type of service provided by the claimant falls within cl B.2.1 for the purposes of cl 4.1 of the Mining Award.

29      The claimant’s role was to be available for emergency situations at the places at which he worked. He was required to respond in the case of fire or vehicle accident.

30      If I find that the first respondent was engaged in the mining industry and if the first respondent had designated the claimant to be a Mining Industry Services Employee then it could be found that the service the claimant provided, which was not dissimilar to services provided by site catering, cleaning and security staff, fell within cl B.2.1 of the Mining Award. I say that because the type of service the claimant delivered is clearly covered and contemplated by what is provided in cl B.2.1 of the Mining Award. Although the clause does not contain an exhaustive list of services and does not specifically refer to emergency services officers, it nevertheless would apply to such services provided at a mining site because such services are integral to a mine’s operations, and are akin to other services such as security services at a mine site.

31      However, the classification clause cannot be invoked because the claimant has failed to prove, as is required by cl 4.1 of the Mining Award, that the first respondent was engaged in the mining industry. The temporary labour services the first respondent provided to its clients were not used in the activities set out in cl 4.2(a) to cl 4.2(e) of the Mining Award and therefore not within the mining industry.

32      I find that the Mining Award does not apply.

33      The Miscellaneous Award covers employers throughout Australia and their employees in the classifications listed in Clause 14 - Minimum wages, who are not covered by any other modern award.

34      Clause 4.7 of the Miscellaneous Award provides:

“This award covers any employer which supplies on-hire employees in classifications set out in Schedule B and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This subclause operates subject to the exclusions from coverage in this award.”

35       Given that none of the exclusions had application and that no other modern award covered the claimant and the first respondent, it follows that the Miscellaneous Award was the applicable award.

Annual Leave Entitlements

36      Clause 23.11 of the Miscellaneous Award prescribes that annual leave is provided for in the National Employment Standards (NES) found in s 61 to s 131 of the FW Act. The entitlement to annual leave is in s 87 of the FW Act. For my purposes the claimant asserts that he was, pursuant to s 87(1)(a) of the FW Act, entitled to four weeks’ paid annual leave for each year of service.

37      Section 87 of the FW Act is part of Division 6 - Annual leave. Within Division 6, s 86 provides:

“This Division applies to employees, other than casual employees” (my emphasis).

38      The first respondent and the second respondent submit that by virtue of s 86 of the FW Act, the claimant was not entitled to annual leave because he was a casual employee. A finding that the claimant was a casual employee will obviously defeat his claim.

Was the Claimant a Casual Employee?

39      Clause 10.4 of the Miscellaneous Award states:

“A casual employee is one engaged as such. Casual employees must be paid a loading of 25% in addition to the relevant minimum wage in clause 14. This loading is instead of the leave to which full-time employees are entitled under the NES and this award.”

40      Clause 10.3 of the Mining Award contains a similar provision. It states that a casual employee is one engaged and paid as such. If the issue is to be determined by virtue of an award definition alone, as is suggested by the first respondent and the second respondent, then it will matter little for that purpose which award applies. That is because in each case, the definition of a “casual employee” is substantially the same.

41      The claimant’s position is that the FW Act is silent on the meaning of a “casual employee”, and the modern awards provide no more than a statement that a casual employee is one who is “engaged as such” which is not helpful in determining the matter. It is submitted, therefore, that the court must consider the relevant common law principles to properly determine the issue.

42      In Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 (Telum) the Full Bench of the Fair Work Commission (FWC) was asked to consider the meaning of a “casual employee” within the NES with respect to s 123(1)(c) of the FW Act, which provides that notice of termination and redundancy do not apply to a casual employee.

43      The Full Bench in Telum said that the Commissioner at first instance fell into error by not addressing the proper construction of s 123(1)(c) of the FW Act, because the Commissioner proceeded on the basis that the expression “casual employee” in s 123(1)(c) referred to casual employment as defined by the common law.

44      The Full Bench said, at [58] and [59]:

“[58] In summary, the FW Act provides for the regulation of terms and conditions of employment of national system employees through an interrelated system of the National Employment Standards, modern awards, enterprise agreements (and, in some cases, workplace determinations or minimum wage orders). Having regard to the objects and purpose of the legislation, it is obvious that the legislature intended that those components should interact consistently and harmoniously. We conclude that on the proper construction of the FW Act the reference to “casual employee” in s.123(3)(c) and the rest of the NES - and, indeed, elsewhere in the FW Act - is a reference to an employee who is a casual employee for the purposes of the Federal industrial instrument that applies to the employee, according to the hierarchy laid down in the FW Act (and, if applicable, the Transitional Act). That is, the legislature intended that a “casual employee” for the purposes of the NES would be consistent with the categorisation of an employee as a “casual employee” under an enterprise agreement made under Part 2-4 of the FW Act (or under an “agreement based transitional instrument” such as a workplace agreement or certified agreement made under the WR Act) that applies to the employee or, if no such agreement applies, then consistent with the categorisation of an employee as a “casual employee” within the modern award that applies to the employee. Subject to any terms to the contrary, a reference to a “causal employee” in an enterprise agreement (or agreement based transitional instrument) will have a meaning consistent with the meaning in the underpinning modern award (or pre-reform award/NAPSA).

[59] The CFMEU placed particular reliance on the decision of Barker J in Williams v MacMahon Mining Services Pty Ltd (2010) 201 IR 123. That case was relevantly concerned with the meaning of “casual employee” in s.227 of the Workplace Relations Act 1996. Barker J noted (at [31]) that “[t]he parties accept that the WR Act does not define the expression “casual employee” and so the expression should be given its ordinary common law meaning.” This case is concerned with a different statutory context and Barker J’s decision does not assist in the proper construction of the expression “casual employee” in s.123(1)(c) of the FW Act.”

45      Paragraph 58 of Telum instructs that where there is an enterprise agreement, that agreement applies in defining what a casual employee is. Where there is no such agreement as in this case, the modern award defines a casual employee, and there is no room for the common law to play a role in the proper construction of the term “casual employee”, as defined in the FW Act.

46      Relevantly, in Telum the Full Bench said at [22]:

“[22] The language of s.123(1)(c), like any other provision, must be construed in the context of the FW Act as a whole and with the purposive approach mandated by s.15AA of the Acts Interpretation Act 2001. There is no rule of construction that dictates that an expression such as “casual employee” must have its general law meaning.”

47      Then at [49] to [51], the Full Bench went on to say:

“[49] Other uses of the expression “casual employee” or the word “casual” in the FW Act support the conclusion that they refer to the characterisation of the employee under the applicable modern award or enterprise agreement.

[50] The FW Act defines the expression “long term casual employee’ in s.12 to mean

long term casual employee: a national system employee of a national system employer is a long term casual employee at a particular time if, at that time:

(a) the employee is a casual employee; and

(b) the employee has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.

[51]  This very definition suggests that legislature did not intend the expression “casual employee” to call up the general law approach. If the criterion in (b) is satisfied then the employee would likely not be a “casual employee” under the general law approach but the definition presupposes that an employee who satisfies the criterion in (b) can still be a “casual employee” within the meaning of (a).”

48      In Telum (at [51] and [57]), the Full Bench noted that a long-term casual employee, as defined by the FW Act, is still a casual employee. Such an employee employed on a regular and systematic basis with a reasonable expectation of continuing employment is protected from unfair dismissal but is still a casual employee under the FW Act. Notwithstanding that, such employees are disentitled to redundancy pay (s 123 of the FW Act) and annual leave (s 86 of the FW Act).

49      The claimant submits that if the Telum decision is to be followed and the wording of the relevant award provisions are to be considered, this court must nonetheless consider the authorities which have, at common law, considered the definition of casual employment. In particular, the decision of the Federal Court in Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321 and others, including Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589 and Melrose Farm Pty Ltd T/As Milesaway Tours v  Milward [2008] WASCA 175. That approach, however, appears to run contrary to what was said in Telum.

50      Indeed, the approach adopted in Telum is supported by later decisions of the Full Bench of the FWC in Il Migliore Pty Ltd T/A Il Migliore v McDonald [2013] FWCFB 5759 (Il Migliore), in which it was said at [48] to [54]:

“[48] The Commissioner referred to a number of authorities dealing with casual employment at common law and concluded that Ms McDonald was a permanent employee as at 3 February 2013. It appears that the Commissioner considered this conclusion to be necessary for the events of 3 February 2013 to constitute a dismissal at the initiative of the employer. That reasoning was affected by error.

[49] The concept of casual employment at common law is not well defined. The main authorities and the difficulties of characterisation are usefully identified by Boland P in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Department of Justice and Attorney General (Corrective Services NSW) [2010] NSWIRComm 148. However, those authorities had no proper application in the present case.

[50] A modern award, the Food, Beverage and Tobacco Manufacturing Award 2010, applied to the applicant in her employment by Il Migliore. The provisions of a modern award operate by force of statute and displace the common law to the extent of such operation. The modern award defines casual employment. Clause 13 provides:

‘13.1 A casual employee is one engaged and paid as such. A casual employee for working ordinary time must be paid an hourly rate calculated on the basis of 1/38th of the minimum weekly wage prescribed in clause 20.1(a) for the work being performed plus a casual loading of 25%. The loading constitutes part of the casual employee’s all purpose rate.

13.2 On each occasion a casual employee is required to attend work the employee must be paid for a minimum of four hours’ work. In order to meet their personal circumstances a casual employee may request and the employer may agree to an engagement for less than the minimum of four hours.

13.3 An employer when engaging a casual must inform the employee that they are employed as a casual, stating by whom the employee is employed, the classification level and rate of pay and the likely number of hours required.’

[51] If an employee covered by this modern award is employed as a casual (that is, the employment is characterised by the parties in that way) (my emphasis) and paid as a casual, then the employee is a casual under the modern award. The modern award applies by operation of statute and displaces the common law for the purposes of determining whether an employee covered by that modern award is a casual employee.

[52] The characterisation of an employee’s type of employment supplied by an applicable modern award (or enterprise agreement) is the characterisation of that employee’s type of employment for the purposes of the Fair Work Act 2009 (FW Act): see the discussion in Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434.

[53] There was no scope for the application of the common law authorities relied upon by the Commissioner in the consideration of the s.394 application before him. Nevertheless, the FW Act confers unfair dismissal protection on casual employees whose work has been regular and systematic for a sufficient period: see s.384(2)(a).

[54] The evidence was unanimous that Ms McDonald was engaged and paid as a casual at all material times. That was the case with all of Il Migliore’s employees. For the purposes of the Fair Work Act 2009, Ms McDonald was a casual employee and not a permanent employee.”

51      Telum and Il Migliore are clear in their application. They require that in determining the issue of whether the claimant was a casual employee, given that an enterprise agreement does not apply, I must look to the applicable modern award to see how it defines “casual employee”. In this instance, the applicable award is the Miscellaneous Award which provides that a casual employee is one engaged as such.

52      At [51] of Il Migliore, the Full Bench found that to be engaged as a casual required the employment to be characterised by the parties in that way. Therefore, if the parties characterise the employment as casual, then the employee will be a casual employee under the relevant award.

53      What is meant by the phrase “engaged as a casual” has been considered by the Federal Court of Australia in Fair Work Ombudsman v Devine Marine Group Pty Ltd & Others [2014] FCA 1365 (Devine).

54      At [137], his Honour White J noted:

“The FWO submitted that both Mr James and Mr Kouka should be characterised as casual employees and that they had not been paid the casual loading.  The submissions of the Ombudsman proceeded on the basis that the status of the men as casuals or otherwise was to be determined by the general law. In this respect, the FWO referred to Reed v Blue Line Cruises Ltd (1996) 73 IR 420 and to Hamzy v Tricon International Restaurants [2001] FCA 1589; [2001] 115 FCR 78.”

55      At [138], his Honour White J went on to say:

“However, in my opinion, the approach for which the FWO contended is not the correct approach.  Regard must be had instead to the definition of “casual employment” in cl 14.1, namely, that a “casual employee is one engaged and paid as such”.  That definition is to be understood in the context of the Award as a whole and, in particular, in the context of its provisions concerning full-time and part-time employment.”

56      At [141] and [142], his Honour also said:

 “141  The word “engaged” in cl 14.1 of the Award is capable of more than one meaning.  On one view, it can refer to the way in which the parties themselves identified their arrangement at its commencement.  On another view, it can be a reference to the objective characterisation of the engagement, as a matter of fact and law, having regard to all the circumstances.  Support for the former construction is seen in the decision of the Full Bench of the Fair Work Commission in Telum Civil (Qld) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434.  The Full Bench said at [38]:

[38] All of the modern awards contain a definition of casual employment. Those definitions, notwithstanding some variation in wording, have the same core criteria:

(i) That the employee was “engaged” as a casual - that is, the label of “casual” is applied at the time of time of engagement; and

(ii) That the employee is paid as a casual, and specifically, the employee is paid a casual loading (set at 25% in all of the modern awards, subject to transitional arrangements), which loading is paid as compensation for a range of entitlements that are provided to permanent employees but not to casual employees.

(Emphasis added)

 142  The second construction is seen in the decision of Industrial Relations Commission of Western Australia in Loves Bus and Taxi Service v Zucchiatti [2006] WAIRC 5758; (2006) 157 IR 348.  Ritter AP, with whom Beech CC and Mayman C agreed, said at [45]:

[45] I also do not think that the Commissioner was in error in not finding the respondent was engaged as a casual, pursuant to clause 14(5) of the award. This definition refers to a “worker engaged and paid” as a casual worker. This definition means that just because somebody is paid as a casual employee does not mean that they are a casual employee under the award. This is because they must also be “engaged as such”. The reference to the engagement of the worker in my opinion directs attention to the basis upon which the worker was employed as a matter of law and fact. It does not simply direct attention to the label placed upon the status of the worker by the parties. …

(Emphasis added)”

57      His Honour then concluded, at [144] and [145]:

 “144  It is sufficient in my opinion to state that, in the present case, the former construction draws support from two considerations and should be adopted.  First, the term “specifically engaged” in cl 12 indicates that the focus is on the agreement of the parties at the commencement of the employment as to the character of the employment.  Secondly, the requirement in cl 14.3 for the observance of formality at the time of engagement of a casual employee suggests that the word “engaged” is directed to the agreement made between the parties rather than to the manner and circumstances in which the employee does in fact carry out his or her work.

 145  In my opinion, neither Mr James nor Mr Kouka can be regarded as casual employees on this understanding of the definition in cl 14.1.  Nothing was said to them at the time of their engagement about being casuals.  It cannot be concluded therefore that they were “engaged” as casuals.  They gave no evidence that they had, subjectively, regarded themselves as casuals.  Further, and in any event, they were not paid as casuals.”

58      The first respondent and the second respondent submit that the decision in Devine followed Telum and it supports the conclusion that if, at the commencement of the employment the parties agree that the employee is to be employed as a casual, then the employee is a casual. I agree with their submissions in that regard.

59      The authorities in Telum and Il Migliore make it clear that there is no room for a consideration of the common law approach as suggested by the claimant.

Was the Claimant Engaged as a Casual Employee?

60      There is no dispute that a written contract was signed by the parties in February 2010 at the commencement of the first period. Further, there is no dispute that no other written contract was entered into with respect to the second period. There is no dispute that the parties entered into the second period on the basis that it was an extension of the first period or alternatively, that there was another employment contract between the parties which was unwritten but on the same terms and conditions as the contract for the first period.

61      The question remains as to whether the claimant was engaged as a casual employee. The first respondent and the second respondent assert that the claimant was employed as a casual, and therefore the onus is on them to prove that fact on the balance of probabilities.

62      In his submissions, the claimant says that he was not a casual employee because he was not engaged as a casual and was not paid as such. Further, at [36] of the claimant’s written submissions, he says that the fixed-term contract signed on 12 February 2010 makes no reference to casual engagement, other than a statement outlining a mandatory requirement to state the date that he was advised that the employment is of a casual nature with no entitlement to annual leave. It is asserted that the requirement was not complied with and no date appears where required.

63      With respect, the evidence before this court does not support that submission.

64      The contract of employment which is annexed to the claimant’s witness statement (exhibit 1) indicates the following:

1. the contract of employment was for a fixed period from 12 February 2010 to 30 December 2010; and
2. the claimant was to be paid $48.00 per hour plus nine per cent superannuation; and
3. the claimant’s performance would be reviewed in three months; and
4. that his engagement was casual with no entitlement to paid leave.

65       If the written contract gives rise to any ambiguity on its face, with respect to the nature of the claimant’s engagement, such is quickly dispelled by what the claimant said at [16] of his witness statement (exhibit 1). The claimant said:

“I was told by Kevin (Broadbent) I was not entitled to annual leave as I was a casual.”

66      In his witness statement, the second respondent said the following concerning the claimant’s initial engagement (exhibit 6, [10]):

“10.  At the time I had discussions with him and told him that due to the nature of our contracts with the clients he was employed as a casual employee and that his hourly rate specified at $48 an hour was a flat rate for all casual employees and there would be no entitlement to paid leave.”

67       There can be no doubt that at the time the claimant took up employment with the first respondent, he was engaged as a casual and was told that he would not be entitled to paid leave, including annual leave. By executing the contract of employment, the claimant accepted those terms of engagement. Those terms of engagement and conditions of employment thereafter remained unchanged (save CPI increases in the rate of pay) until such time as the claimant executed his second written contact of employment on 12 September 2013.

68       The definition of casual employee in cl 10.4 of the Miscellaneous Award is limited to one of being engaged as such with no more being required.

Was the Claimant Paid as a Casual?

69       It will be appropriate to consider the payments made to the claimant in the event that I am wrong in my interpretation of cl 10.4 of the Miscellaneous Award, or if I am wrong about the coverage of the Mining Award.

70       It may be argued that the definition of a casual employee in the Miscellaneous Award requires that the court be satisfied not only that the claimant was engaged as a casual, but that he was paid a 25% loading in addition to the relevant minimum wage in cl 14 of the Miscellaneous Award.

71       With respect to the Mining Award, the definition of casual employee requires not only that an employee be engaged as a casual but also paid as such.

72       The second respondent’s evidence is that the hourly rate paid to the claimant was comparable to rates paid to other casual employees doing the same job in the same industry. Indeed, the claimant’s hourly rate was market driven (see exhibit 6, [19]). I accept that evidence.

73       The documentary evidence before this court (exhibit 3) establishes that the claimant was paid as follows:

74       On any account, the hourly rate paid to the claimant was well above the base hourly rate and loading required to be paid under either the Miscellaneous Award or the Mining Award.  The claimant was therefore a casual employee for all purposes under each award. There was never any complaint made by the claimant that the first respondent had failed to pay him a casual loading. It was implicit in any event by his engagement as a casual, that his hourly rate included a casual loading.

75       I am satisfied, on the balance of probabilities, that at all material times, the claimant was paid a casual loading as part of his hourly rate of pay. The fact that on 12 September 2013, the first respondent agreed to pay him leave entitlements does not mean that it accepted that the claimant had previously been underpaid or that he had not been paid his casual loading.  Rather, the first respondent was prepared to change the terms of his engagement in order to retain claimant’s services. In so doing it agreed to pay him an hourly rate comparable to the casual rate even though he was no longer a casual. That was a commercial decision based on the law of supply and demand.

Common Law

76       For the sake of completeness, I will address the claimant’s position at common law in the event that I may be wrong concerning the application of Telum.

77       The claimant was initially engaged under a written contract of employment, which indicated that he was a casual employee. The claimant also clearly acknowledged being told by the second respondent that he was employed as a casual. Although that alone is not determinative, it is a factor to be considered.

78       The claimant asserts that his employment was permanent, ongoing, regular and systematic which is inconsistent with a casual employment relationship.  The claimant points out that he worked 10 or 12 hour shifts and that he was rostered on a regular fly-in, fly-out pattern of two weeks on followed by two weeks off throughout his employment.

79       The first respondent and the second respondent, on the other hand say that the claimant’s weekly hours were erratic as indicated by the fact he would fill-in for other employees at various places. In addition, they observe that he was engaged as and when required by the client and was moved from site to site at the client’s request.  There was no system or regularity in his employment.

80       At [23] of his witness statement the second respondent asserts that the claimant was entitled to “knock back” assignments or swings at any time (see exhibit 6). I accept that was the case.  Indeed, he was able to leave work for two days to attend an FMG induction and then returned for one week’s work before leaving to commence work for another employer. The claimant advised on 8 August 2011 that he would be leaving site on 10 August 2011 and returning to site on 13 August 2011 (see exhibit 6, [34], [35] and [36]). That sort of conduct is consistent with the informality associated with casual employment.

81       With respect to the regularity of the claimant’s working hours, what is clear is that he generally worked a pattern of two weeks on, followed by two weeks off. Notwithstanding that, from time to time his work pattern would change, either to cover for other employees, or alternatively, to enable him to do other things he wanted to do. In that regard he behaved as a casual employee would, in that he was able, to a significant extent, to determine his own working arrangements.

82       The claimant was prepared to work for other employers if the opportunity arose and was “on the books” of other employers. In that regard, he acted as a casual employee would, in that he could change from one employer to another at a moment’s notice.

83       The claimant took unpaid leave for a holiday (exhibit 6, [23]) which is consistent with the fact that he did not accrue annual leave or personal leave of which he knew from the commencement of his employment.  Notwithstanding that he never complained about it until mid-2013.

84       The first respondent did not guarantee the claimant’s employment. The claimant’s employment was project-based and dependent upon the first respondent’s clients’ needs, as is evidenced by the end date on the contract (see exhibit 6, [58]). It cannot be said that the claimant’s employment was ongoing in nature. Indeed, his engagement following the ending of the fixed term contract was determinable at very short notice. That applied to both the claimant and the first respondent.

85       In my view, the claimant was contracted as a casual employee, paid as such and behaved as a casual employee would. His working arrangements were flexible, notwithstanding the fact that he followed a reasonably regular pattern of work. The claimant could effectively come and go as he pleased and was not bound to the first respondent.

86       For those reasons I find that at common law, the claimant was a casual employee.

Conclusion

87       The claimant did not accrue annual leave entitlements as provided by s 87(1)(a) of the FW Act because s 86 of that Act precluded him from doing so.

88       It follows that his claim against his employer, the first respondent, is not made out.

89       The basis for the claim against the second respondent has been unclear throughout the proceedings.

90       Counsel for the claimant was unable to identify, at trial, the statutory provision that he says draws the second respondent’s liability.  I must say that I suspected that he was referring to      s 550 of the FW Act, which provides that a person involved in the contravention of a civil remedy provision (which includes s 44(1) of the FW Act) is taken as having contravened that provision.

91       In the event that was so, the claimant could not have succeeded given my findings with respect to the first respondent.  However, late yesterday afternoon counsel for the claimant wrote to the court to advise that the relevant provision is s 546 of the FW Act.

92       I observe that s 546 of the FW Act empowers the court to order a person to pay a pecuniary penalty, if satisfied that the person has contravened a civil remedy provision.  However, in this instance, I cannot be satisfied of that.  The second respondent was never the claimant’s employer and I cannot see how, in the circumstances or otherwise, liability could attach to him.  Even if it could be said that he was the claimant’s employer, the claimant cannot succeed for the very same reasons appertaining to the first respondent. 

Costs

93       Counsel for the first respondent and the second respondent suggested that I make a finding that the claim in relation to the second respondent had been instituted either vexatiously, without reasonable cause, or had caused him to unnecessarily incur costs. The application for costs is made pursuant to s 570(2)(a) and s 570(2)(b) of the FW Act.

94       Given that the claimant has not addressed the issue of costs in any meaningful way I do not propose to determine that issue within these reasons. It will be appropriate, following the delivery of these reasons, for the parties to further specifically address the issue of costs and make their submissions in that regard.

G. CICCHINI

INDUSTRIAL MAGISTRATE