WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2023 WAIRC 00931

CORAM : INDUSTRIAL MAGISTRATE R. COSENTINO

HEARD : WEDNESDAY, 8 NOVEMBER 2023

DELIVERED : WEDNESDAY, 8 NOVEMBER 2023

FILE NO. : M 71 OF 2023

BETWEEN : THE AUSTRALIAN MARITIME OFFICERS' UNION

CLAIMANT

AND

MID WEST PORTS AUTHORITY

RESPONDENT

CatchWords : Summary dismissal application – whether claim has no reasonable prospects of success – on-call allowance – issues and evidence ought to be tested at trial – summary dismissal application dismissed – costs – Fair Work Act 2009 s 570(2)(b) – no order as to costs.

Legislation : Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)

Fair Work Act 2009 (Cth)

Instrument : Mid West Ports Authority General Staff Enterprise Agreement 2017

Case(s) referred

to in reasons: : Royal Melbourne Institute of Technology v National Tertiary Education Industry Union [2011] FCA 34

Toma v Workforce Recruitment and Labour Services Pty Ltd [2022] FCAFC 100

Result : Application dismissed; no order to costs

Representation:

Claimant : Mr C. Fogliani (of counsel) and with him, Mr G Walsh (Industrial Officer)

Respondent : Mr C. Marshall (of counsel) and with him, Mr C. Koltasz (Human Resources Manager)

REASONS FOR DECISION
 

This decision was delivered extemporaneously on 8 November 2023 and has been edited from the transcript to correct matters of grammar, add headings and include complete citations.
 

1         Mid West Ports Authority is seeking summary dismissal of the Australian Maritime Officers’ Union’s (AMOU) claim under reg 5 and reg 7.1 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA). It also seeks costs. It says the claim has no reasonable prospects of success and the claim must fail. It relies on the affidavit of Craig John Koltasz, sworn 12 October 2023 in support of the application.

2         The principles that apply in applications for summary dismissal are well established and are not in dispute. They are summarised in both the respondent’s outline of submissions and in the claimant’s outline of submissions. The key points are:

1. that a claim will be dismissed summarily if it does not disclose a cause of action or if it is so clearly untenable that it could not possibly succeed.
2. the Court should not exercise the discretion to summarily dismiss a claim unless it is clear that there is no real question of law or fact that needs to be tried. That does not mean that the Court cannot determine difficult questions of law. But often difficult questions of law may be appropriately left to trial, particularly when those questions of law might be resolved by reference to facts.
3. Mid West Ports bears the persuasive onus on this application and the AMOU bears the evidentiary onus. In this regard, the AMOU relies on the affidavits of two individual employees which were received into evidence.                            
    

Nature of the Claim

3         The AMOU represents two of Mid West Ports’ former employees. They were employed as Occupational Safety and Health Officers for several years until May 2021 and September 2021 respectively.

4         The Mid West Ports Authority General Staff Enterprise Agreement 2017 (Agreement) applied to both employees from the date of its registration on 28 November 2017 onwards.

5         The AMOU’s claim in respect of both employees is that Mid West Ports breached cl 5.2.1 of the Agreement and therefore s 50 of the Fair Work Act 2009 (Cth) by failing to pay the employees an on-call allowance for all time outside normal working hours in the relevant period of employment.

6         It is not in dispute that neither employee was paid an on-call allowance under cl 5.2.1.

7         Clause 5.2.1 provides:

Where an employee is required to be contactable outside normal work hours and available to return to duty within a reasonable period, the employee will be entitled to be paid an on-call allowance at the following rates: 6% of the employee’s hourly rate of pay for each hour of restriction duty.

8         The AMOU contends that each employee was required to be contactable outside of the normal work hours, fit and available to return to duty within a reasonable period and therefore qualified for the entitlement to the on-call allowance. It will argue at trial that the requirement to be on‑call was comprised of the inherent nature of the job, its responsibilities and duties and/or an express instruction given by a manager. It foreshadows relying upon evidence about the job requirements and duties as well as express verbal instructions given before the Agreement was registered and came into effect.

9         In short, the AMOU’s claim is that both employees were constantly on-call when not actually at work and for the duration of their employment they were at all times required to be at the ready to return to work.             
 

Do the claims have any prospects of success?

10      Mid West Ports does not apply for dismissal on the basis that no cause of action is disclosed. Rather, it says that the cause of action cannot succeed and the claim is untenable. There are six grounds for this contention which I will deal with in turn.

Ground 1 – the effect of clause 1.4.3

11      The first ground is that the purported directions which the AMOU rely upon for the requirement to be on‑call predate the registration of the Agreement and cl 1.4.3 of the Agreement operates to exclude, override or nullify any such directions.

12      This ground raises a question of law, namely, the meaning and effect of cl 1.4.3.

13      Clause 1.4.3 says:

This Agreement replaces and operates to the exclusion of all previous agreements between the parties including any agreement, arrangement, work practise or understanding, whether written or unwritten, without prejudice to any rights, obligations or liabilities accrued and vested in any party at the date of approval.

14      For this clause to override or nullify a direction previously given to an individual employee, it must be construed such that “all previous agreements” means and includes directions to individual employees about their duties and the performance of their duties. Mid West Ports submits that is how the clause should be construed because it is a broad provision.

15      There are several difficulties with such a construction. First, a direction or instruction to an employee might be unilateral and not involve agreement at all. The directions might simply be followed because an employee is under a duty to follow instructions, rather than because the employee agrees with it. In other words, I doubt that the plain and ordinary meaning of “agreements” in the clause is so wide as to encompass unilateral directions or instructions given to individual employees.

16      Second, a direction to an individual employee does not involve all employees covered by the Agreement, nor the AMOU. I note that the word “parties,” is defined in cl 1.3 as meaning:

MWPA, the AMOU and the Employees covered by this Agreement.

 [Where MWPA means Mid West Ports Authority].

17      So, a direction or instruction would not meet the requirement of being a previous agreement between “the parties.” It seems that the clause is probably contemplating something in the nature of a collective agreement.

18      Third, many directions given to individual employees are not the subject of topics covered by the Agreement. It is therefore unlikely that it was intended that the Agreement replace and supersede agreements or arrangements that cover matters that the Agreement itself does not deal with.

19      I should make it clear that I am not determining what is the correct construction of cl 1.4.3 at this point, just whether there are issues that ought to be tried. But even if Mid West Ports’ construction is correct, its construction is not fatal to the claim. There remains a question of fact as to whether there was a requirement to be on‑call. That is because the AMOU’s case is on the basis that the requirement may have arisen by a combination of facts, the direction referred to in the statement of claim being only one of those relevant facts.

20      Ultimately, whether there was a requirement to be on‑call will turn on evidence which ought to be tested at trial.

21      This disposes of Mid West Ports’ application to strike out the particular paragraphs of the statement of claim referred to in its submissions which refer to arrangements or agreements that predate the date of registration of the Agreement.              
 

Ground 2 – clause 5.2.1 does not require employees to be perpetually on-call

22      The second of Mid West Port’s grounds is that on a proper construction, cl 5.2.1 of the Agreement does not require any employee to be on-call 24 hours per day, seven days per week for the duration of their employment. Mid West Ports’ submissions go on to say that the AMOU has not shed any light on how cl 5.2.1 could possibly be construed to perpetually require employees to be on-call, yet it seeks an on-call allowance for each day and at all times outside the employees’ normal working hours of work for the full duration of their employment under the Agreement.

23      While the claim that the two employees were always on-call seems to be a stretch or unusual or extreme, the short answer is that this ground for summary dismissal misconceives the AMOU’s case. The AMOU does not say that cl 5.2.1 itself requires the employees be on-call. Rather, the AMOU says that the employees were given duties and instructions which amounted to the requirement in cl 5.2.1 to be on‑call.             
 

Ground 3 – clause 5.2.1 requires discrete instructions

24      The third ground, is that on a proper construction of the clause, alternatively by way of an implied term, cl 5.2.1 requires an express direction to be made by Mid West Ports to a particular employee to be on-call on a discrete basis, that is, that any request to be on-call could not be perpetual, ongoing or require an employee to be on-call 24 hours per day, seven days per week and presumably, 365 days per year.

25      I should say first, that it is very unusual for the respondent to make a case for summary dismissal on the basis of a term it is seeking to imply in the Agreement. The onus will be on Mid West Ports to establish that the term should be implied. So that makes it unusual to apply for summary dismissal of the claimant’s case on the basis of an implied term the claimant is not seeking to imply. Ultimately, to prove the implied term and discharge the onus, Mid West Ports may need to lead evidence at trial. This is a matter which would ordinarily be one that should be tested at trial. The criteria for implication of the term can properly be tested at trial rather than on a summary dismissal application.

26      As for the proper construction argument, remarkably, in arguing for Mid West Ports’ contended for construction, no attempt was made to apply the established principles of construction of industrial instruments. Mid West Ports have made no reference to the text of the Agreement, nor to the industrial context. Rather, Mid West Ports relies, it seems, exclusively on a Federal Court decision, Royal Melbourne Institute of Technology v National Tertiary Education Industry Union [2011] FCA 34 (RMIT).

27      The RMIT case considered a different clause in a different agreement. It does not stand for a principle of general application as to the correct construction of industrial agreements generally. And so it does not assist Mid West Ports in its summary dismissal application.

28      By way of elaboration, the RMIT decision concerned the application of the Royal Melbourne Institute of Academic and General Staff Agreement 2005 to 2008, cl 10. Although cl 10 dealt with the topic of on-call allowance, it was very different to cl 5.2.1. The clause contained the express words “initiated” and it contained express requirements being based around a roster system. It had six subsections including subsection 10.1 which said:

The on‑call requirement is initiated by RMIT where there is a requirement for service to be available 24 hours per day, seven days per week. On‑call requirements will be based around a roster system and will require the employee’s agreement.

29      The Magistrate at first instance found that the fact that the University generally required services to be available 24/7 was enough to satisfy the requirement in cl 10.1 for the initiation of an on‑call requirement. The appellant contended that this involved error in construction of cl 10. The correct construction of cl 10 was considered by Lander J from paragraphs [86] onwards.

30      His Honour listed four requirements involved in the clause, noting that those four requirements were the same as the requirements the Magistrate at first instance had identified, although Lander J put them in a different order of priority. But they were requirements that were specific to cl 10, not requirements for on-call generally as a matter of industrial principle or generally as a matter of construction of on-call clauses.

31      His Honour ultimately found that the requirements of cl 10 were not met because the timing of events relied upon as amounting to the “initiation” did not align with the timing of the operation of the Agreement. In other words, the facts did not establish an “initiation.” The outcome turned on the facts, not the construction of cl 10. I refer to paragraphs [102], [103] and [104] of His Honour’s reasons in this regard.

32      It may be that cl 5.2.1, properly construed, contains similar elements to cl 10 of the agreement considered in RMIT. But there is no warrant to read the RMIT decision as importing identical requirements when construing cl 5.2.1.

33      The real controversy in this case is not the correct construction of cl 5.2.1. It is whether as a question of fact the elements of cl 5.2.1 are satisfied. In particular, were the employees required to be contactable outside of normal work hours on restricted duty?             
 

Ground 4 – as a matter of law, an on-call roster is necessary for an employee to be on-call

34      Fourth, Mid West Ports says that the case cannot succeed due to the operation of law. I have had difficulty identifying what legal principle or law is relied upon. Mid West Ports repeats its contentions about the proper construction of the clause, again relying on RMIT. Mid West Ports goes on to say that based on the reasoning and result in RMIT, there needed to be an on-call roster. And because there was no on-call roster, the employees were not really on‑call.

35      As I have already observed, the reasoning in RMIT is specific to the facts of that case. It does not stand for a general legal principle which is a bar to the AMOU’s claims. It may be persuasive. But it is distinguishable on the facts. It is therefore not fatal to the claim and it does not mean that the claims are untenable.

36      Ultimately, whether there was a requirement to be contactable on restricted duty is a question of fact, not a question of law. And again, I point out to the extent that reliance is placed on RMIT, the clause in that case expressly required an on-call roster, whereas cl 5.2.1 says absolutely nothing about an on-call roster.              
 

Ground 5 – a perpetual on-call requirement amounts to unreasonable hours

37      Fifth, Mid West Ports says that the use of the words “restricted duties” in cl 5.2.1 means that any times which an employee is entitled to an on-call allowance, they are on “restricted duties” and therefore they cannot drink alcohol during such times nor could they leave the Port of Geraldton area. A blanket direction to be on-call perpetually throughout the period of employment would be, in Mid West Ports’ submission, absurd and a contravention of the prohibitions on working unreasonable hours in s 62 of the Fair Work Act.

38      These factors may well be relevant to a determination of whether there was, as a matter of fact, a requirement for the employees to be perpetually on-call. I accept that some weight should be given to the express reference in the clause to “restricted duties” and that the term will have a meaning which will be relevant to deciding whether the element of being “required to be contactable” is met. But these factors are to be weighed with the other evidence and circumstances in determining whether, as a matter of fact, the two employees were required to be contactable outside their normal working hours. These are matters that must be tested at trial.              

Ground 6 – the directions relied on were not lawful

39      Finally, Mid West Ports says that if a direction was given, it was not lawful or reasonable because it would be contrary to s 62 of the Fair Work Act which restricts an employer from requesting or requiring an employee to work more than 38 hours a week unless the additional hours are reasonable.

40      I accept for the purpose of this application that legislative regulation of hours of work will be relevant context for determining whether Mid West Ports, as a matter of fact, required the employees to be on-call as they allege.

41      Section 62(3) of the Fair Work Act sets out nine factors which must be taken into account in determining whether additional hours are reasonable or unreasonable for the purposes of s 62(1) and s 62(2) as well as a tenth factor which is “any other relevant matter.” The section is in mandatory terms. That is, each of the factors must be taken into account. Mid West Ports have made no attempt to address any of the factors but make a bare assertion that a requirement to be perpetually on-call would be unreasonable. Mid West Ports may ultimately be right but these, again, are matters about which evidence should be led and tested at trial.

42      Mid West Ports also says that the directions from the manager which the AMOU relies upon ceased or expired when that manager ceased employment with Mid West Ports. However, as I understand it, this is not relied upon as a complete defence to the claims.              
 

Conclusion

43      Mid West Ports has not discharged its persuasive onus to warrant dismissal of the claims at this interlocutory stage. Its application for summary dismissal will be dismissed.

Costs

After delivering my ex tempore reasons for dismissing the summary dismissal application, the AMOU moved for an order that Mid West Ports pay its costs of the application.

44      The Court has a constrained power to award costs. The awarding of costs is usually an exceptional step: Toma v Workforce Recruitment and Labour Services Pty Ltd [2022] FCAFC 100 at [47].

45      The AMOU relies on s 570(2)(b) of the Fair Work Act which refers to a party’s unreasonable act or omission causing the other party to incur costs. There are two unreasonable acts the AMOU say invoke the section. The first is bringing the application for summary dismissal in the absence of merit. The second is the rejection of an offer made on a without prejudice basis on 27 October 2023.

46      Dealing first with the lack of merit ground: deciding whether conduct is reasonable or unreasonable will always involve matters of judgment and impression. And different minds will arrive at different conclusions about whether conduct was unreasonable. The fact that Mid West Ports made this application for summary dismissal is not particularly remarkable. It did ultimately fail. That does not on its own mean that it was unreasonable to make the application. If all that can be said in support of the costs application is that it was unreasonable because it failed or was without sufficient merit to succeed, then the position would be as if there were no constraint on the award of costs at all and costs would follow the event.

47      As for the reliance on the letter of 27 October 2023, again, I am not satisfied that the failure to withdraw the application for summary dismissal following that correspondence is an unreasonable act or omission in circumstances where the correspondence post‑dates the filing of the AMOU’s submissions and evidentiary material and also where part of the proposal requires payment of a sum of money to the AMOU. In circumstances where the ordinary rule is that the parties bear their own costs, the rejection of that offer is not an unreasonable act or omission which justifies an order for costs under s 570.             

Orders

My orders are:

1. The respondent’s application for summary dismissal is dismissed.

2.  There be no order as to costs.

R. COSENTINO

INDUSTRIAL MAGISTRATE