WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2015 WAIRC 00990

DELIVERED : THURSDAY, 5 NOVEMBER 2015

FILE NO. : M 123 OF 2014

claimant

AND

Stockbridge (WA) Pty Ltd

Respondent

Catchwords : Alleged breach of the Community Pharmacy Award 1998 and the Pharmacy Industry Award 2010 [MA000012] by failing to pay the correct hourly rate, overtime, meal break allowance, holiday pay and public holiday pay; Alternate claim alleging breaches of the Community Pharmacy Multiple Business Agreement (Western Australia) constituted by the same alleged failures; Claim for pro-rata long service leave pursuant to the Long Service Leave Act 1958

Legislation : Workplace Relations Act 1996

  Fair Work Act 2009

  Long Service Leave Act 1958

  Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Instruments :  Community Pharmacy Award 1998

  Pharmacy Industry Award 2010 [MA000012]

  Community Pharmacy Multiple Business Agreement (Western Australia)

Result : Preliminary issues determined

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 B W Duckham (counsel) of B W Duckham & Co.

Respondent : Ms N Young (counsel) of HHG Legal Group

REASONS FOR DECISION

Introduction

1          Mr Maurice Czarniak (the claimant) is and was at all material times a qualified pharmacist.  Between 31 January 2007 and on or about 7 January 2014, he worked for Stockbridge (WA) Pty Ltd (the respondent) at its Friendlies Pharmacy in Oxford Street in Leederville (the pharmacy).

2          The claimant’s employment ended when he resigned from his employment.  His resignation was a condition of the settlement of his worker’s compensation claim against the respondent which was with respect to the post-traumatic stress disorder he developed following a number of armed hold-ups at the pharmacy. 

3          Subsequent to the settlement of his worker’s compensation claim, the claimant, then unrepresented, instituted this claim to recover money allegedly owed to him  by reason of the respondent’s failure to pay him his correct entitlements under the Community Pharmacy Award 1998 (CP Award) and the Pharmacy Industry Award 2010 [MA000012] (PI Award).  He also sought the payment of long service leave entitlements which he says is payable to him pursuant to s 8(3) of the Long Service Leave Act 1958

4          He initially claimed $39,565.28, but later increased his claim to $126,048.55.  Subsequently he ‘modified’ his claim and now seeks payment of either $193,254.70 or $201,575.40, dependent upon which industrial instrument covered his employment.

5          The claimant contends that during the entire period that the respondent employed him, he worked on a part-time basis rather than as a casual and was therefore entitled to the benefits payable to a part-time employee.

6          The respondent says that the claimant was engaged and paid as a casual employee, and therefore was not entitled to the various benefits payable to a part-time employee. It denies breaching the applicable award and/or agreement.

Preliminary Issues

7          After the claim had been listed for trial the claimant made an application seeking that the following preliminary issues be determined:

1. whether the PI Award covered the claimant’s employment as from1 January 2010; and
2. whether his employment with the respondent was part-time or casual.

8          The respondent did not oppose the claimant’s application but given the lateness of the application it was not possible to hear and determine the preliminary issues prior to the listed trial date.  Consequently, on 1 October 2015, I made an order that the trial dates of 14 and 15 October 2015 not be vacated but rather be utilised to hear and determine the preliminary issues. I further ordered that all other matters in issue were, if required, to be addressed and determined following the decision on the preliminary issues.

9          On the 14 and 15 October 2015 I heard evidence and received submissions on the preliminary issues.  These reasons are with respect to those preliminary issues.

Facts

10       I find the following facts established.

11       In about the year 2000, the claimant sold his pharmacy.  Thereafter, he worked as a pharmacist at various pharmacies, sometimes on a permanent part-time basis and sometimes on a full-time basis, but more commonly as a locum on a casual basis.  By early 2007, the claimant was unhappy with the irregular nature of his employment and was looking to obtain more regular employment.

12       In early 2007, Mr Don Phillips, the locum officer at Sigma Pty Ltd, informed the claimant that Mr Craig Wedd (Mr Wedd), who was unknown to the claimant, was looking for a pharmacist to work at his pharmacy for three days per week on an ongoing basis.  Mr Wedd was looking for a pharmacist to work from 2.30 pm to 8.30 pm on Tuesdays, from 8.30 am to 8.30 pm on Wednesdays and from 8.30 am to 8.30 pm on Sundays.

13       Consequently, the claimant contacted Mr Wedd and arranged to meet him.

14       The claimant and Mr Wedd discussed the position over coffee at Giardini’s coffee shop near the pharmacy.  During their meeting, Mr Wedd told the claimant that he particularly wanted someone to work every Sunday.  The claimant told Mr Wedd that he was unprepared to work every Sunday, but would be available to work every second Sunday.  In addition he was prepared to work Saturdays. Mr Wedd accepted that and offered the claimant employment in accordance with the terms of a written contract of employment which was to be supplied to him.  

15       When the contract was eventually produced, the claimant noted that his employment was to be with Mr Wedd’s company, Stockbridge (WA) Pty Ltd.  The claimant signed the contract on 29 January 2007 being the first day of his employment notwithstanding that the contract indicated that his employment was to commence on 31 January 2007.

16       The claimant was engaged to work every Tuesday from 2.30 pm to 8.30 pm, every Wednesday from 8.30 am to 8.30 pm, every Saturday from 8.30 am to 8.30 pm, and alternate Sundays from 8.30 am to 8.30 pm.  In the end result, the claimant agreed to work 42 hours one week and 30 hours the following week, which averaged 36 hours per week on a fortnightly basis.  As it turned out, those hours varied from time to time although any variance was the exception rather than the rule.  The claimant’s hours were reasonably regular and consistent.

17       The contract of employment provided that the claimant was to be paid a flat rate of $35 per hour as a casual employee in accordance with the CP Award, and that on Sundays and public holidays, the claimant would be paid a casual flat rate of $45 per hour.

18       The contract of employment also provided, on the first page:

*Casual employment is by the hour and there is no sick leave, holiday pay or personal leave etc. To allow for this, casual rates have a 20% loading.

19       The written contract of employment contained various other conditions, including a requirement for both parties to give notice of termination or resignation, in accordance with the scale set out on page 3 at [7].  The conditions relating to leave entitlements were expressly declared not to be applicable to casuals.

20       At the commencement of his employment, the claimant was given the keys to the pharmacy which he, with the consent and knowledge of the respondent, kept throughout his employment.   His duties included locking up the pharmacy at closing and setting the alarm.  Invariably when the claimant worked at the pharmacy he was the only pharmacist on duty and was legally responsible for the dispensary.  Over and above that it was the claimant’s responsibility also to ensure that whilst he was in attendance the pharmacy operated in an orderly fashion. 

21       The claimant worked continuous hours without breaks.  He was never given a break to eat his lunch and usually ate his lunch ‘on the run’.

22       In about mid-2008, Mr Wedd offered to increase the claimant’s Sunday pay rate to $50 per hour and offered him an incentive payment being a percentage of the profits in the event that the Sunday turnover exceeded $3,000.  Despite achieving that target he never received the incentive payment.

23       Although unhappy about his pay rate, the claimant, for various reasons, found it difficult to approach Mr Wedd about it and consequently did not do so.  He feared that any such approach might lead to his employment being terminated or that it might detrimentally affect Mr Wedd’s already fragile psychological state.

24       During the period of Mr Wedd’s psychological infirmity, Mr Wedd’s wife contacted the claimant and asked him whether he could work for the respondent every day but he declined to do so.  Consequently another pharmacist was employed to cover Mr Wedd’s absence.

25       From time to time the claimant took time off working for the respondent.  In about 2008 he went on a touring holiday with his wife.  He made all the necessary arrangements and then told Mr Wedd that he would be taking time off for that purpose.  He did not request leave as such.  He simply informed Mr Wedd that he would be taking such leave at a time that suited him.  Mr Wedd did not take issue with that, and the time the claimant took off was without pay.

26       During the course of his employment with the respondent, the claimant was able to work, and did work, for other pharmacies.  He was not exclusively committed to the respondent. Indeed Ms Brennan, the pharmacy manager, who from 2009 was responsible for staffing arrangements, would often remind the claimant that he was employed as a casual.

27       Sometime after 2010 the claimant told Mr Wedd that as he had been on the same wage for four or five years, an adjustment to his pay rate was necessary.  Mr Wedd declined to increase his pay rate and told the claimant that he was being paid the correct amount under the award.

28       Following the relocation of the pharmacy from the east side to the west side of Oxford Street in Leederville, criminal behaviour within the store became prevalent.  Shoplifting became a significant issue and Mr Wedd brought pressure to bear upon the claimant to stop or reduce the incidents of shoplifting.

29       Further, between June 2010 and March 2013, the pharmacy was the subject of three armed robberies.  On each occasion, the claimant was alone in the pharmacy and was traumatised by his assailants.  Despite complaining about what he felt was a lack of security at the premises, the respondent did nothing about it.  The Claimant, in part, attributes the continued incidents of offending to that lack of security.

30       In the end, the cumulative affect of the armed robberies caused him to be unfit for work.  He was absent from work following the armed robbery on 31 March 2013, and was unable to return to work at any time leading up to his resignation.

Determination

Applicable Award/Agreement

31       It will be necessary in due course to consider the meaning of ‘casual employee’ but before doing so, it is important to determine the awards and/or agreements that covered the parties during their employment relationship.

32       When the parties entered into the written contract of employment, it was an express term thereof that the CP Award governed their employment relationship.  That term will be of no effect if their actual position at law was different, however, that was not the case in this instance.

33       The CP Award was an award that had force pursuant to the operation of Part 10 of the Workplace Relations Act 1996 (WR Act).  The coverage provisions in cl 2.1 of the CP Award clearly included the claimant and respondent and therefore governed the employment relationship.  It follows that the express term of the contract of employment was an accurate statement of the parties’ legal position at that time and neither party has sought to argue otherwise.

34       In about March 2009, the Pharmacy Guild of Australia, Western Australian Branch (the Guild) invited employees of its members in Western Australia, including those of the respondent, to enter into an employee collective agreement (as defined by s 327 of the WR Act).  The employee collective agreement was to be known as the Community Pharmacy Multiple Business Agreement (Western Australia) (the CPMB Agreement).

35       As part of the process for registration of the proposed CPMB Agreement pursuant to the WR Act, the affected employees were given the opportunity to take part in a ballot to indicate their acceptance or otherwise of that agreement.  Mr Anthony McAnuff, the Executive Manager of the Western Australian Branch of the Guild, testified that the majority of affected employees voted in favour of CPMB Agreement. Consequently the agreement was lodged for registration.  The CPMB Agreement became operative on 1 September 2009 after the Workplace Authority had given notice pursuant to s 346M of the WR Act, that the CPMB Agreement had passed the ‘no disadvantage test’ (see Division 5A of Part 8 of the WR Act) .

36       Schedule A of the CPMB Agreement provides a list of employers covered by the agreement. The respondent is included in that list.  In accordance with cl 3 of the CPMB Agreement, both the claimant and the respondent were bound by the agreement.

37       When the WR Act was repealed, the CPMB Agreement became a ‘collective agreement-based transitional instrument’, in accordance with s 5(c)(i) of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Clause 4.3 of the CPMB Agreement states:

Subject to law this agreement operates to the exclusion of any industrial agreement or award that may otherwise apply.

38       In accordance with cl 4.3 of the CPMB Agreement, it operated to the exclusion of any other industrial agreement or award that may otherwise apply.

39       On 1 January 2010, the PI Award, being a modern award which was made under the Fair Work Act 2009 (the FW Act), commenced.  However, it did not apply to the claimant and the respondent because cl 4.3 of the CPMB Agreement operated to exclude it.

40       It follows that the claimant’s employment was initially governed by the CP Award, and that from on or about 1 September 2009 until the claimant resigned, his employment was governed by the CPMB Agreement.

Validity of the CPMB Agreement

Voting Irregularity

41       The claimant said that he was never made aware of the proposed CPMB Agreement and that he never participated in the requisite ballot because he did not receive ballot papers.  He seemingly infers that the agreement is somehow vitiated by that. However there is nothing of which I am aware, nor has anything been brought to my attention which would tend to indicate that CPMB Agreement is rendered invalid because the claimant’s inability to participate in the ballot.

Failure to Post CPMB Agreement at the Pharmacy

42       Clause 5.1 of the CPMB Agreement requires that the agreement be posted in a convenient location at the employer’s premises for easy access by an employee who wishes to access it.  The claimant alleges that by reason of the respondent’s failure to comply with that requirement he never became aware of its existence.

43       It is unclear as to why this issue has been raised in the context of the determination of these preliminary issues.  I observe that even if such a failure were to be established, it cannot have any bearing on my decision on the preliminary issues.  It would not invalidate the CPMB Agreement.  At best the alleged failure may give rise to a separate claim with respect to a breach of the agreement.     

Compliance with s 871(2) WR Act

44       The claimant submits that if his status as a casual employee emanates from the CPMB Agreement, then the same is undermined by the fact that the agreement is void under s 871(3) of the WR Act because it fails to comply with the requirements of s 871(2) of the WR Act.  Section 871(2) provides that the CPMB Agreement is required to contain an express term to the effect that, ‘for so long as the casual employee is subject to the agreement, the casual loading that is payable to the employee must not be less than the default casual loading percentage (within the meaning of Division 2 of Part 7)’.

45       The default casual loading percentage is found in s 186 of the WR Act, which provides that the casual loading is 20%, subject to the power of the Australian Fair Pay Commission to adjust the percentage.

46       If the claimant’s submission in that regard is correct, then the claimant’s status would emanate from the PI Award because that is the modern award which replaced the CP Award.  If the PI Award covered the claimant and the respondent, then the claimant would fall outside the meaning of a casual employee and arguably, fall within the meaning of a part-time employee.

47       Clearly, whether or not the CPMB Agreement is void is critical to the outcome in this matter.

48       Clause 8.1 of the CPMB Agreement provides that a casual employee who is a pharmacist is to be paid at the appropriate rate of pay prescribed in cl 13.1, plus an additional loading of 20%. That provision is an express term which indicates that an employee, who is subject to the CPMB Agreement, during the term of the agreement, will not be paid less than the default casual loading percentage.  Clause 8.1 of the CPMB Agreement complied with the requirements of s 871(2) of the WR Act when the agreement came into force because it expressly provided that the casual loading payable was not less than the default casual loading percentage of 20%.  It follows that s 871(3) of the WR Act does not operate.  The CPMB Agreement is not void.

49       Consequently the claimant’s status as a casual employee must be determined from the meaning given to that term by the CPMB Agreement.

Validity of the Contract of Employment

50       As I understood his submissions it was suggested in closing by counsel for the claimant that the individual contract of employment between the claimant and the respondent dated 29 January 2007 is also void.  With respect, I did not understand his submission in that regard and am unaware of any reason as to why contract of employment is either void or voidable.

Was the Claimant a Casual Employee?

51       The FW Act is silent on the meaning of a casual employee however cl 13.1 of the PI Award defines the term as follows:

A casual employee is an employee engaged as such and who does not have an expectation or entitlement to reasonably predictable hours of work.

52       Clause 12.1 of the PI Award defines part-time employee. It states:

12.1 A part-time employee is an employee who:

(a)    works less than 38 hours per week; and

(b)   has reasonably predictable hours of work.

53       It is clear therefore that if the PI Award applied to the claimant’s employment he would have been a part-time employee within the meaning given to that term by cl 12.1 of the PI Award.  However as indicated earlier, cl 4.3 of the CPMB Agreement operates to exclude the operation of the PI Award and accordingly whether the claimant was a casual or part-time employee is to be discerned from the meaning given to those terms by the CPMB Agreement.

54       Clause 6.6 of the CPMB Agreement provides:

6.6 Casual employee means an employee who is engaged and paid as such but does not include employees within the definition of part time employee as defined in this clause, but may include an employee who is employed to replace the proprietor or other permanent employee for a fixed period of employment.

55       Relevantly, part-time employee is defined in cl 6.5 of the CPMB Agreement as follows:

6.5 Part-time employee means a permanent employee who is engaged by an employer on a regular and systematic basis for a sequence of periods of employment and who is engaged to work an average of less than 38 hours per week and receives entitlements pro-rata.

56       The CP Award defined a casual employee in cl 6.5 thereof, in identical terms to cl 6.6 of the CPMB Agreement.  The definition of part-time employee in cl 6.5 of the CPMB Agreement is almost identical to the meaning given to that term in cl 6.4 of the CP Award.

57       The claimant says that the meaning attributed to a casual employee by the CP Award and the CPMB Agreement is not helpful.  He suggests that the court must resort to the relevant common law principles to properly determine whether he was a casual employee.

58       In Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 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.

59       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.

60       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.

61       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 the modern award will define a casual employee. In any event there is no room for the common law to play a role in the proper construction of the term ‘casual employee’.  For my purposes in this matter I note that the CPMB Agreement operates under the FW Act because it is a ‘collective agreement-based transitional instrument’, under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.  Having regard to what was said in Telum, it is to be considered in the same way as an enterprise agreement made under the FW Act.

62       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.

63       At [49] to [51], the Full Bench had observed:

[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).

64       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).

65       The claimant submitted that if the Telum decision is to be followed and the wording of the relevant award provisions are to be considered, then this court should nonetheless, in construing the relevant provisions, consider the authorities which have, at common law, considered the definition of casual employment.  He  says that I should particularly have regard to the decision of the Federal Court in Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321 and other decisions, 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.  With respect that approach appears to run contrary to that taken in Telum.

66       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, 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.

67       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 the PI Award does not apply, I must look to the applicable agreement, being the CPMB Agreement, to see how it defines a casual employee.  The CPMB Agreement provides that a casual employee is an employee who is engaged and paid as such, but does not include employees falling within the definition of a part-time employee as defined in cl 6.5 thereof, but may include an employee who is employed to replace the proprietor or other permanent employee for a fixed term.

68       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 or agreement.

69       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.

70       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.

71       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.

72       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)

73       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.

74      The decision in Devine followed Telum and 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. They together with Il Migliore make it clear that the status of an employee is to be determined in accordance with the applicable industrial instrument and not common law principles. The claimant’s submission that the common law applies is against those authorities.

Was the Claimant a Casual Employee Within the Meaning of the CPMB Agreement?

75       The contract of employment that the claimant signed is unequivocal.  It provides that the claimant was engaged as a casual employee and that he would be paid a flat rate as his casual rate of pay.  The contract of employment states that the casual rate includes a 20% loading and that he would not be entitled to sick leave, holiday pay or annual leave.

76       There can be no doubt that the claimant was engaged as a casual and that he was paid as such (see exhibits 3 and 7).  The issue of the claimant’s engagement is not in dispute and has in any event, in submissions lodged, been conceded.  Notwithstanding that, the claimant says that in reality he was a part-time employee.

77       The claimant’s employment status cannot be determined on common law principles, but rather, by the application of the definitions in cl 6 of the CPMB Agreement.

78       The claimant asserts that he was a part-time employee and not a casual employee.  He bears the onus of proving, on the balance of probabilities that which he asserts.

79       In order to come within the definition of a ‘part-time employee’ in cl 6.5 of the CPMB Agreement, the claimant must prove the following:

1. that he was a permanent employee; and
2. that the respondent engaged him on a regular and systematic basis for a sequence of periods of employment; and
3. that he was engage to work an average of less than 38 hours per week; and
4. that he received entitlements pro-rata.

80       Clause 6.2 of the CPMB Agreement defines a permanent employee to mean an employee other than a casual.  Clearly, ‘permanent’ and ‘casual’ are mutually exclusive concepts.

81       The claimant’s evidence is that he was paid a flat rate hourly rate which included a casual loading and was not paid when he took time off.  Overwhelmingly, the evidence establishes that he has never received entitlements on a pro-rata basis.  The receipt of entitlements pro-rata is a requisite element that the claimant has to prove in order to enable him to fit the definition of a part-time employee.  Having failed to establish that he received entitlements pro-rata he cannot come within the definition of a part-time employee despite having met the other requisite criteria which would otherwise have brought him within that definition.

82       The claimant was engaged and paid as a casual employee and he did not come within the meaning of part-time employee under the CPMB Agreement.  It follows that he was a casual employee.  The fact that the claimant worked on a regular and systematic basis for an ongoing period of employment, is not inconsistent with the concept of casual employment within the context of the CPMB Agreement.  Such is recognised in cl 27.3.1 of the CPMB Agreement with respect to parental leave.

83       The contract of employment that the claimant and respondent entered into was explicit and clear in its terms.  Although the claimant may have desired ongoing permanent employment, what he agreed to was casual employment with the benefit of being paid a flat rate which included a 20% loading.

84       The claimant is an intelligent and articulate man who previously ran his own business.  It is inconceivable in light of the contract of employment that he signed, that he considered his employment was anything other than casual.  Indeed, he was constantly reminded by the pharmacy manager, Ms Brennan, that he was a casual employee and never challenged her about that.  He never took issue about not being paid when he took time off from work, nor did he, during the course of his employment, complain that he was not receiving his correct entitlements.  That was so because he knew that he had been engaged as a casual employee and was being paid as such.

Conclusion

85       On the preliminary issues I find that:

1. The PI Award has never been applicable to the claimant’s employment; and
2. The claimant was a casual employee.

G. Cicchini

INDUSTRIAL MAGISTRATE