100315767

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES JULIE BOND

CLAIMANT

 -v-

 PAUL VELLA

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE WEDNESDAY, 26 FEBRUARY 2003

CLAIM NO/S M 277 OF 2002

CITATION NO. 2003 WAIRC 07841

_______________________________________________________________________________

Representation

Claimant Mr P Mullally as agent

Respondent Mr D F Johnson as agent

_______________________________________________________________________________

Reasons for Decision

Background

1         The Respondent is a chartered accountant and registered tax agent who, at the material times, carried on business from premises situated at 1 Irwin Road, Wangara.  The Claimant is a former employee of the Respondent.  She worked for the Respondent in the capacity of secretary/relief receptionist from on or about 3 February 2000 to and including 8 March 2002.

Issues

2         It is not in dispute that the employment of the Claimant was at all material times subject to the terms and conditions of the Clerks (Accountants Employees) Award No A8 of 1982 (the Award).

3         The Claimant alleges that from 3 February 2000 to 3 February 2001 she worked on a part-time basis with the Respondent and that thereafter until her termination, which occurred on 8 March 2002 that she worked on a full-time basis.  The Claimant argues that, given that her employment status was in reality permanent, then she was, upon termination, entitled to payment in lieu of annual leave not taken.  The Claimant alleges that the Respondent has breached clauses 7B(3) and 12(1) of the Award by virtue of his failure to pay her entitlements pursuant to those provisions.  She says that she is entitled to recover $3,329.20 in that regard.  The Claimant also alleges a breach of clause 10(1) of the Award constituted by the Respondent’s failure to pay her for public holidays that occurred during the material period.  The Claimant seeks to recover the total amount of $1,587.30 in that regard.  Further, the Claimant contends that the Respondent has failed to comply with clause 14(2) of the Award by failing to pay her one week’s pay in lieu of notice.

4         The total underpayment alleged, as is expressed in the Particulars of Claim, is said to be $4,916.50.  That figure is clearly wrong as it fails to take into account $483.70 for payment in lieu of notice.  The correct amount should be $5,400.20.  The Claimant seeks to recover that sum together with interest on that amount.  The imposition of penalties and an order for costs are also sought.

5         The Respondent contends that the Claimant was at all material times a casual employee, a fact well known by her.  He says that she was offered casual employment on 1 February 2000 and accepted the same on 3 February 2000.  She has since that time been engaged on a number of other occasions until 8 March 2002.  By virtue of her position being casual in nature she was never entitled to annual leave or public holiday pay.  Further, the Respondent contends she was not entitled to a week’s pay in lieu of notice but rather that he could terminate her in accordance with the terms of their written agreement, which he did.

6         The pivotal issue to be determined in this matter is whether the Claimant was at all material times a “casual employee” within the meaning of clause 7A of the Award or whether she was at all material times a permanent employee working either in a part-time or full-time capacity.

The Facts

7         A short time prior to the Claimant gaining employment with the Respondent she had moved to Perth from Mandurah following the break-up of her marriage.  At the time she brought with her her two children then aged 7 and 9 respectively.  Intent on making a new start the Claimant sought part-time employment and wrote to several accountants seeking employment.  She advised them that she had experience working for an accountant in Mandurah and sought a similar position.  She in fact sought a part-time position so as to accommodate the needs of her children.  She wanted to ensure that her children were emotionally settled and settled in at school before committing herself to full-time employment.  One of the firms to whom she wrote was that of the Respondent.  The Respondent expressed an interest and an interview was arranged.  The week following the interview Mr Vella offered the Claimant employment.

8         On her first day at work (3 February 2000) the Claimant accepted as the terms and conditions of her employment those as set out in a letter prepared by the Respondent and handed to the Claimant entitled “Offer of Casual Employment and Terms” (see exhibit 1).  The letter, which is dated 1 February 2000, contains inter alia the following terms:

“1.     REMUNERATION

 Your starting wage will be $15.00 per hour, on a casual basis, which will be paid fortnightly in arrears.

 Your remuneration will be reviewed between 6 – 12 months.  These reviews shall encompass performance and conditions of employment.

2.     PROBATION

 The first four (4) months of your employment will be a probationary period during which time the contract may be terminated by either party giving to the other, one weeks notice or paying or forfeiting, as the case may be, one weeks wages in lieu of notice.

3.     TERMINATION OF CONTRACT

(a)    Except in the case of Gross Misconduct, which includes but is not limited to theft, use of, or being under the influence of drugs or alcohol, the parties agree that the notice periods set out in the table below shall be given in writing by one party to the other:

(b)    Where this notice or part of notice is not given by one of the parties, wages shall be forfeited by the employee or paid in lieu of notice nor payment of pro rata annual leave nor payment of leave loading being required to be made.

(c)    In the case of Gross Misconduct the employee may be terminated immediately and paid up to the time of termination only with no pay in lieu of notice.

5.     HOURS OF WORK

 The hours of work shall be 9.00 am to 3.00 pm, 2 – 3 days per week during Feb – April.  Then 9.00 am – 3.00 pm, 3 – 5 days per week from May through to January.  You will also have an option to extend your daily hours during May through to January.  These hours are dependant upon the work available and your availability.  The hours of casual employment will totally be at the discretion of the employer.

11.    SIGNIFICANT CHANGE

 The employer undertakes to keep the employee informed as to any structural changes which may have a significant effect on their future career prospects.  This shall include discussions on re-training, re-deployment and job security.”

9         Other provisions made it clear that the Claimant would not be entitled to payment with respect to public holidays, sick leave or annual leave.  The offer of employment was also subject to the Claimant entering into a confidentiality agreement.

10     It is noted that the Claimant readily concedes that she knew from the outset that she was employed as a casual employee and was to be paid as such.  Furthermore, it is clear that what the Respondent required of her suited her particular circumstances.

11     It is self evident from the time sheets kept with respect to the Claimant’s employment (exhibit 4) that in the very early part of her employment she worked in the order of 4 to 7 days per fortnight usually working about a six and a half hour day.  By early June 2000 she increased the number of days worked and also the number of hours worked.  From that time onwards until the Respondent’s firm closed for the Christmas break in 2000 she in fact worked between 7 and 10 days per fortnight.  Of the days not worked some are attributable to public holidays occurring during the relevant fortnightly periods.  She did not work between just before Christmas 2000 and New Year’s Day 2001 inclusive.  In the first year of her employment from about early June 2000 to about mid January 2001 she worked in the order of about 8 hours per day.  Such is self-evident when exhibit 4 is considered.  It is to be noted that the time sheets (exhibit 4) reflect some pay periods to be fortnightly whilst others are weekly.  Accordingly, regard must be had to that fact when analysing the table annexed to the Claimant’s Particulars of Claim.  It is also noted that there is some difficulty in the calculation of hours in the table in that for some of the pay periods the minutes worked are expressed in a decimal configuration whereas in other instances the minutes worked are expressed as raw minutes.  The effect of that is that the total hours worked has been incorrectly calculated.  Having made that observation, it suffices to say, for my purposes, that it is readily apparent that during the first year of the Claimant’s employment commencing early June 2000 that she worked relatively regular hours usually commencing about 8:45 am and finishing any time between 4:45 pm and 5:00 pm.  I recognise however that her start and finish time were flexible and were not necessarily the same each day.

12     The extent to which the Claimant worked for the Respondent during the latter part of her first year of employment is exemplified by a consideration of the time sheets for the week ending 27 July 2000.  It is noted that in that week she worked in excess of 41 hours.  A consideration of the time sheets for the week ending 2 December 2000 indicates that she worked 39 hours.  She often worked in excess of 32 hours per week.  Exhibit 4 also reflects a reduction of days and hours worked from mid January 2001 through to mid April of that year.  By the start of May 2001 she commenced working almost every day.  The failure to work on a given day is usually explained by the occurrence of a public holiday or, alternatively, by reason of the Christmas period shutdown.  On many occasions during the second year of the Claimant’s employment she worked in excess of 40 hours per week and almost invariably worked in excess of 32 hours per week.  That occurred from early May 2001 and onwards.  It is self evident from the documentary evidence available that the Claimant’s work hours during that period were both regular and significant.

13     Mr Vella in his testimony said that when he interviewed the Claimant he made it clear to her that the position offered was a casual one and that her rate was a casual one inclusive of holiday pay, sick leave and annual leave.  She was told that work would be available according to the needs of the business and completely at his discretion.  He said that Ms Bond was quite happy with that because it suited her personal and domestic situations.  Mr Vella told the Court that Ms Bond could refuse to work if she wanted to.  The fact that she did not have to go into work was something that Mr Vella accepted as part of the casual arrangement that existed.  Mr Vella was challenged when cross-examined as to his contention that the Claimant was during the material period engaged on a number of separate occasions.  His response in that regard was unconvincing.  He was not able, in my view, to point out separate engagements.  I am therefore able to conclude in that regard that there was only ever one engagement, which was the one that occurred on 3 February 2000.

14     On 5 March 2002 the Claimant prepared and signed a letter to be given to the Respondent the next day.  In that letter Ms Bond said:

“I hereby wish to tender my resignation as a Receptionist with your firm.

I have been looking for alternative employment for a period of time now and have recently secured a permanent full time position.

In line with our Workplace Agreement, I give you the required notice to finish on Thursday 28 March 2002.”

15     The letter was handed to Mr Vella on 6 March 2002.  On Friday afternoon of 8 March 2002, Mr Vella called the Claimant into his office, handed her a cheque and asked her to leave immediately.  Mr Vella later posted a letter to the Claimant dated 8 March 2002 (exhibit 3) in which he said:

“Dear Julie

Please find enclosed cheque, which you may have inadvertently left behind.

Please note that the cheque included the following:

35.33 Hours worked (Friday 1/3/02 – Friday 8/3/02)

12.00 Hours to cover two days (11/3/02 & 12/3/02)

Gross Wages                    $757.28

Tax                                   $142.00

                                         ----------

Net                                   $615.28

As you were employed casually on the basis of 2-3 days per week, during February to May, I have taken the first weeks notice of termination to include Thursday 7th & Friday 8th March.  The second weeks notice being 11th & 12th March.

We wish you all the best for the future.”

16     The method of her termination shocked the Claimant.  As a result she took advice and consequently was advised with respect to her rights as against the Respondent.

Casual, Part-Time or Full-Time?

17     The Claimant contends that notwithstanding that she was labelled a “casual employee”, the reality was that she, at all material times, was in fact a permanent employee working in either a part-time or full-time capacity.  Accordingly I am called upon to determine whether or not the Claimant was a permanent employee as alleged and if so whether she is entitled to recover unpaid award entitlements in that regard.  That process necessarily requires the consideration of the Award definition of “casual employees” found at clause 7A, which provides:

7A. - CASUAL EMPLOYEES

(1) A casual employee shall mean an employee engaged and paid as such, and whose employment may be terminated by the giving of one hour's notice on either side, or by the payment or forfeiture, as the case may be, of one hour's pay.

(2) A casual employee shall be paid in accordance with the provisions of subclause (4) of Clause 11. - Rates of Pay.

 Notwithstanding anything contained in this clause the basis and terms of employment of casual clerks may be varied in any particular case by agreement in writing between the employer and the Union.

18     There can be no doubt that the Respondent purportedly engaged the Claimant as a “casual employee” and paid her as such, but can it be said that her employment could be terminated by either party giving one hour’s notice or by the payment or forfeiture of one hour’s pay?  The answer is clearly no.  I say that because the terms of the agreement entered into between the parties on 8 February 2000 militates against such a construction.  Although the Respondent purported to engage the Claimant on a casual basis, it is readily apparent from the written agreement between them that her engagement was both permanent and long-term.  A number of the clauses within the written agreement reflect that to be the true position.  The remuneration clause (clause 1) of the agreement indicates a review of remuneration between six to twelve months.  That is hardly the sort of clause to be found in a contract of employment that evidences a number of separate engagements.  Furthermore, the four-month probation period, as provided for in clause 2, does not fit with casual employment.  If the contract of employment were truly casual, the employer would have been within his rights to terminate at any time and not to re-engage the Claimant.  The position is perhaps best demonstrated by the “Termination of Contract” clause, which makes reference to the periods of notice to be given.  The periods referred to within that clause are clearly inconsistent with what is contained in clause 7A(1) of the Award.  It is the type of clause that would relate to an employee who is regarded as being permanent.  The clause itself refers to the employee’s period of continuous service with the employer and envisages employment for continuous periods of years, consistent with that of a permanent employee.  Further, clause 11 of the agreement entitled “Significant Change” is also inconsistent with casual employment.  That clause addresses, inter alia, job security.  Put bluntly there is no job security as a casual.  It is clear that the clause was aimed at the Claimant continuing to work for the Respondent on a permanent and long-term basis.  It is apparent that neither party was of the view that the contract of employment was determinable by the giving of one hour’s notice.  Indeed, the dealings between the parties evidence the true nature of the relationship, as does the written agreement between them (see Squirrell v Bibra Lakes Adventure World Pty Ltd 64 WAIG 1834 per Fielding C at page 1835).  On a construction of the written agreement alone, it is obvious that the relationship falls outside of what is envisaged and defined by clause 7A of the Award.  Further, on the evidence, it is possible to conclude, and I do conclude, that there were not separate engagements of the Claimant.  Rather, there was one single engagement of her on 3 February 2000 with the expectation that the relationship would be ongoing and that the Claimant would work for the Respondent as required.  Having said that, I recognise that there was considerable flexibility permitted by the Respondent as to start and finish times and as to the totality of hours worked.  Such flexibility, of itself, does not render a permanent relationship a casual one.  The fact that the Claimant considered herself to be a casual and that she was paid as such is not determinative of the issue.  As the Full Bench of the Western Australian Industrial Relations Commission said in Serco (Australia)Pty Ltd v John Joseph Moreno 76 WAIG 937 at 939 in respect of the definition of “casual employee”, (the parties):

“…cannot by the use of a label render the nature of a contractual relationship something different to what it is (see Stewart v Port Noarlunga Hotel Ltd  (op cit) per Haese DPP at pages 5-6).

Certain indicia may be indicative of the nature of the contract, but they are not determinative, taken alone.  These may include the classifying name given to a worker and initially accepted by the parties, the provisions of the relevant award, the reasonable expectation that work would be available to him, the number of hours worked per week, whether his employment was regular, whether the employee worked in accordance with a roster published in advance, whether there was a reasonable mutual expectation of continuity of employment, whether the notice is required by an employee prior to the employee being absent on leave, whether the employer reasonably expected that work would be available, whether the employee had a consistent starting time and finishing time, and there may be other indicia”.

19     In this case there was a reasonable and mutual expectation of continuity of employment.  The agreement between the parties evidences that.  Indeed the conduct of the parties evidences formality, certainty and reasonable regularity in keeping with the situation of a permanent employee.  The way in which the parties conducted themselves, other than with respect to the rate of pay, was demonstrative of an on-going relationship.  There is no way, in those circumstances, that one could conclude that the relationship was terminable on one hour’s notice, payment or forfeiture as the case may be.  The Claimant does not fall within the definition of casual employees as provided by the Award.  For the sake of completeness I mention that what His Honour said in CPSU v State of Victoria (2000) FCA 14 has no application here.  In that case His Honour was dealing with the common law situation in the absence of award proscription as to the meaning of “casual” and “part-time employees.”  In this case the Award specifically proscribes meanings to those terms.

20     I take the view that what the Respondent has done in this instance is to have attempted to contract out of the Award by labelling the Claimant as a casual.  In that way he did not have to worry about all the relevant award provisions, which attach to permanent employees, including holidays.  That suited his purpose.  He nevertheless expected the Claimant to work on a continuing basis.  The relationship was not terminable at short notice as is evidenced by the agreement.  Indeed the agreement reflects an expectation on the Respondent’s part that the Claimant would work on a regular and continuing basis albeit with some flexibility.  What he attempted to do, however, is prohibited by section 114 of the Industrial Relations Act 1979 which provides:

“114. Prohibition of contracting out

(1) Subject to this Act, a person shall not be freed or discharged from any liability or penalty or from the obligation of any award, industrial agreement or order of the Commission by reason of any contract made or entered into by him or on his behalf, and every contract, in so far as it purports to annul or vary such award, industrial agreement or order of the Commission, shall, to that extent, be null and void without prejudice to the other provisions of the contract which shall be deemed to be severable from any provisions hereby annulled.

(2) Each employee shall be entitled to be paid by his employer in accordance with any award, industrial agreement or order of the Commission binding on his employer and applicable to him and to the work performed, notwithstanding any contract or pretended contract to the contrary, and the employee may recover as wages the amount to which he is hereby declared entitled in any court of competent jurisdiction, but every action for the recovery of any such amount shall be commenced within 6 years from the time when the cause of action arose, and the employee is not entitled to recovery of wages under this subsection and otherwise, in respect of the same period.

(3) This section has effect subject to section 7E.”

21     If the Claimant was not a casual employee within the meaning of clause 7A(1) of the Award, it follows that she was a permanent employee, either full-time or part-time.

22     Part-time employees are defined in clause 7B of the Award, which states:

7B. - PART-TIME EMPLOYEES

(1) A part-time employee shall mean an employee who, subject to the provisions of Clause 7. - Hours, works no more than 32 ordinary hours per week except where a part-time employee at the date of this Award is employed for more than 32 hours a week, that arrangement with respect to that employee may continue.

(2) (a) At the time of engagement the employer and the employee shall agree to the number of ordinary hours to be worked by the employee in each week.

  (b) Such number of ordinary hours, once agreed, may be varied by either side giving the amount of notice required by Clause 14. - Contract of Service.

(3) A part-time employee shall receive payment for wages, annual leave, holidays and sick leave on a pro-rata basis in the same proportion as the number of hours regularly worked each week bears to 38 hours.

23     Full-time employee is not defined.  For that matter the “Hours” clause (clause 7) of the Award is vacant.  A consideration of clause 7B(3), however, permits a construction that the ordinary hours to be worked by a full-time employee are 38 hours.  A proper construction of the relevant award provisions results in the conclusion that a part-time employee is one who is not a casual employee and who works no more than 32 hours per week.  A full-time employee is one who is not a casual employee and who is not a part-time employee as defined. 

24     “Was the Claimant a part-time or full-time employee?”  The answer to that question is not easily achieved given the nature of the hours worked by the Claimant.  The hours worked by her between 3 February 2000 and the pay period ending 23 May 2000 are indicative of the Claimant being a part-time employee.  Thereafter, with the exception of three pay periods until the pay period ending 10 January 2001, her hours of work were indicative of those of a full-time employee.  From mid January 2001 until the pay period ending 24 April 2001, the Claimant’s hours of work were more in keeping with those of a part-time employee.  From the pay period following that of 24 April 2001 onwards until termination occurred, with the exception of a few fortnightly periods, she worked the number of hours that a full-time employee would.

25     The Claimant says that the proper way to deal with the factual circumstances relating to hours worked is to treat the Claimant as a part-time employee for the first year of her employment and as a full-time employee thereafter.  The Respondent disagrees with that approach because in some pay periods during the first year of her employment the Claimant worked in excess of 32 hours per week.  Further, it is argued that there was no agreement as to the hours as required by clause 7B(2)(a) of the Award.  Additionally any variation as to hours worked did not comply with clause 7B(2)(b) of the Award.  Those arguments were put forward in support of the submission that the Claimant ought to be treated as a casual rather than a part-time employee.  Recognising that and although I have found against the Respondent in that regard, a consideration of the issue is nevertheless warranted in the determination of whether the Claimant was a part-time or full-time employee.

26     In my view, the times to be worked were agreed by the parties by virtue of the written agreement entered into on 3 February 2000.  It is obvious that the agreed hours changed.  I infer that the hours changed without regard for compliance with clause 7B(2)(b) of the Award.  It seems that the Respondent waived the requirement of notice and worked the increased hours from time to time.  Although there were occasions when the Claimant worked more than 32 hours per week from commencement to 24 April 2001, the nature of her employment was essentially part-time in nature.  The majority of her work during that period was conducted for 32 hours or less per week.  Accordingly, I take the view that clause 7B(1) of the Award should be read to mean that a part-time employee is an employee who “regularly” works no more than 32 ordinary hours per week.  I say that because it is inconceivable that if for some reason a part-time employee, on the odd occasion, is asked to work for more than 32 hours and does in fact work more than 32 hours a week that he or she would, in consequence, axiomatically become a full-time employee.  In my view that is not what could have been intended.  Accordingly, the fact that the Claimant may have worked in excess of 32 hours on occasions leading up to the end of April 2001 does not of itself change the character of her employment status from that of a part-time employee to that of a full-time employee.  Given the number of hours worked by the Claimant I find that she was substantially a part-time employee from commencement until 24 April 2001.  Thereafter she became a full-time employee as she “regularly” worked more than 32 hours per week.  It follows that the Claimant is entitled to Award benefits payable to a part-time employee from commencement to 24 April 2001 and thereafter to the benefits payable to a full-time employee.

Calculation of Entitlements

Annual Leave

27     During the course of submissions the parties agreed that if I found the Claimant to be a part-time employee, the method to be adopted for the calculation with respect to annual leave entitlements accrued as a part-time employee, given that the number of hours worked were irregular, is that found in section 18(2) of the Minimum Conditions of Employment Act 1993 which provides:

“If the number of hours for which an employee is entitled to be paid for a period of leave cannot be determined” – under the first subsection, which is the hours which normally have been worked during that period of leave – “the total number of hours worked under the workplace agreement, award or contract of employment in the 52 weeks immediately before the time the leave is taken are to be averaged as hours worked each week for the purpose of payment for the leave.”

28     In following the suggested method, which I agree is appropriate; it is possible to find that between 3 February 2000 and 24 April 2001 the Claimant worked an average of 26.79179 hours per week.  During that time she accrued an entitlement of 4.7692 weeks wages.  Accordingly, when regard is had for what is stated in clause 7B(3) of the Award, the following calculation results:

26.79179 hours × 4.7692 weeks × $12.26 (rate at termination) = $1,566.53

29     The average hours worked per fortnight by the Claimant as a full-time employee from

25 April 2001 onwards was, in fact, 35.60 hours. That has little relevance, however, because the Claimant’s entitlement is equivalent to that of a full-time employee working 38 hours per week irrespective of the actual hours worked.  The Claimant worked for 44 weeks as a full-time employee.  She accordingly accrued an entitlement to 3.38 weeks annual leave.  In that regard the following calculation is applicable:

38 hours × 3.38 weeks × $12.26 = $1,574.67

30     Accordingly, the total recoverable with respect to annual leave is $3,141.20.

Holiday Pay

31     Turning to consider public holidays, it is the case that the Claimant, during the period of her full-time employment, was not paid for the following:

• Anzac Day 2001
• Foundation Day 2001
• Queens Birthday 2001
• Christmas Day 2001
• Boxing Day 2001
• New Year’s Day 2002
• Australia Day 2002
• Labour Day 2002

32     Accordingly, the Claimant is entitlement in that regard can be calculated as follows:

8 holidays × $93.14 per day = $745.12

33     During the course of her part-time employment the Claimant was not paid for the following 13 public holidays:

• Labour Day 2000
• Good Friday 2000
• Easter Monday 2000
• Anzac Day 2000
• Foundation Day 2000
• Queens Birthday 2000
• Christmas Day 2000
• Boxing Day 2000
• New Year’s Day 2001
• Australia Day 2001
• Labour Day 2001
• Good Friday 2001
• Easter Monday 2001

34     During the course of argument, Mr Mullally, on behalf of the Claimant, abandoned the claim for two public holidays, which occurred during the period of the Claimant’s part-time employment (see transcript page 107).  Had he not done so, I would have allowed the claim in that regard.  In my view the approach suggested by Mr Johnson, which seems to have been accepted by Mr Mullally, fundamentally disregards clause 7B(3) of the Award.  The Claimant’s entitlements can accordingly be calculated as follows:

11 public holidays × $65.69 (26.79179 hours ÷ 5 = 5.35836 × $12.26) = $722.59

35     The total recoverable with respect to holiday pay is $1,467.71.

Pay in Lieu of Notice

36     I move now to consider the claim for a week’s pay in lieu of notice.  Clearly the amount claimed is appropriate.  The Respondent failed to give adequate notice of termination and is in breach of the Award in that regard.  The Claimant is accordingly entitled to $483.70 as claimed less the payment of $192.00 (12 hours × $16.00) already received in that regard.  The amount recoverable is, therefore, $291.70.

Result of Calculations

37     The Claimant is accordingly entitled to recover the following:

• Payment in lieu of annual leave                $3,141.20
• Holiday pay                                               $1,467.71
• Pay in lieu of notice                                  $   291.70

                                             Total                  $4,900.61

Set-Off

38     In so far as the Respondent seeks to set off the overaward payment made by virtue of the payment of a casual rate, it is clear, on the authorities, that that cannot be allowed.

39     It is obvious, when the Award is read as a whole that on its proper construction the loading paid to casual employees must necessarily take into account unspecified benefits foregone by virtue of the casual nature of the employment.  In this case, the Claimant was consistently paid, on a weekly basis, a much higher hourly rate of pay than she would have been if she were correctly classified as a part-time or full-time employee.  Having said that, I recognise that the payments received by the Claimant were not specially paid for the purposes of annual leave or for public holiday pay.  The payment in each instance was made for one purpose only that being in consideration of the hours worked by the Claimant as a casual employee.  The payment had no other purpose.

40     Having said that, is the Claimant entitled to payment of annual leave and holidays as claimed?  In my view the answer is yes.  I say that notwithstanding that the effect of that might be seen as double dipping given that she has already received regular weekly payments, which comprised a loading.  Although seemingly harsh on the employer that approach is supported by the authorities.  In particular I have regard to what the Full Bench of the Western Australian Industrial Relations Commission had to say in AFMEPKIU v Centurion Industries Ltd 77 WAIG 319.  In that case, the employer paid a casual rate of pay to an employee who was not a casual but rather a permanent employee.  Such an amount was in excess of the prescribed amount under the relevant award in that case.  However, the respondent employer did not pay to its employee his specific award entitlements for public holiday pay, annual leave and notice upon termination.  To some extent it can be seen that the factual circumstances in that case are not dissimilar to this.  At first instance, the Learned Magistrate allowed the employer to say that the payments made at a casual rate could be treated in satisfaction of specific award entitlements.  On appeal, the Full Bench held, however, that that could not be done because the payments were not made for the purpose of compliance with the relevant award provision but rather as a wage payable to a casual employee.  His Honour President Sharkey said at page 319:

Further, the contract of employment did not contemplate any liability for the proper award entitlements, and payments made under it for other agreed purposes could not be retrospectively applied in satisfaction of liability under the award (see Jose v Geraldton Resource Centre Inc (op cit) (FB)).  Put another way, the employer cannot now claim to have applied the monies paid to Mr Coci to satisfy award obligations when the monies were specifically paid for other purposes.  Further, the respondent could not be freed from or discharged from its liability or from its obligation to pay amounts for annual leave , notice and public holidays  by reason of a contract which it entered into whereby it purported to undertake obligations other than its award obligations ( see Jose v Geraldton Resource Centre Inc (op cit) (FB) and s.114 of the Industrial Relations Act 1979 (as amended) ).

41     Payments made for a particular purpose cannot be logically ex post facto attributed to another cause or purpose.  Thus the payment of a wage in excess of the Award does not relieve an employer from the obligation to make a further different payment of a different kind under the Award (see Pacific Publications Pty Ltd v Cantlon (1983) 4 IR 415 and also Bradmill Industries Ltd v Shadbolt (1984) AILR 416; cf. Ray v Rodano (1967) AR 471).  In this case, however, the payment of loading was impliedly made in contemplation of the payment of a “casual rate” of pay and no more.  In my view, given the factual circumstances of this case, the situation contemplated by His Honour Olney J in Silberschneider v MRSA Earthmoving Pty Ltd 68 WAIG 1004 does not arise.

42     Accordingly, I find that the totality of the loading received by the Claimant cannot operate to set-off and thereby extinguish the totality of the amounts claimed.

Result

43     The Claimant has proved that the Respondent has breached the Award by failing to make the appropriate payment in lieu of notice and also by failing to pay holiday pay and annual leave entitlements.

44     I will now hear from the parties as to the consequential orders to be made.

G Cicchini

Industrial Magistrate