Dennham Pty Ltd t/as Elders Estate Weston Creek v Taylor [2001] ACTSC 64 (28 June 2001)

Last Updated: 29 January 2002

DENNHAM PTY LIMITED t/as ELDERS REAL ESTATE WESTON CREEK v REGAN TAYLOR [2001] ACTSC 64 (28 June 2001)

CATCHWORDS

LEAVE TO APPEAL - employment law - determining categories of employment - Clerks (ACT) Award 1985 - no question of law.

Clerks (ACT) Award 1985

Clerks (ACT) Award 1998

Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), s 387A

Work Place Relations Act 1996 (Cth), s 179, s 347

CPSU, Community & Public Sector Union v State of Victoria [2000] FCA 14 (14 January 2000)

State Rail Authority (NSW) v Customs [1991] FCA 610; (1991) 33 FCR 211

Thompson v Holder [1989] FCA 493; (1989) 21 FCR 467

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 40 of 2000

Judge: Gray J

Supreme Court of the ACT

Date: 28 June 2001

IN THE SUPREME COURT OF THE )

) No. SCA 40 of 2000

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: DENNHAM PTY LIMITED t/as ELDERS REAL ESTATE WESTON CREEK

Applicant

AND: REGAN TAYLOR

Respondent

ORDER

Judge: Gray J

Date: 28 June 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Leave to appeal be refused.

2. There be no order as to costs.

1. This is an application for leave to appeal against a judgment of the Small Claims Court. The proposed grounds of appeal are that:

1. [The Magistrate] erred in her application of the Clerks (ACT) Award 1985 ("the Award") to the circumstances of the respondent's employment with the appellant.

2. [The Magistrate] erred in finding that the respondent was a casual employee within the meaning of that term under the Award during the period 19 March 1996 to 29 January 1999.

2. The application for leave is brought pursuant to s387A of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT). Before granting leave I must be satisfied that the decision of the Small Claims Court on a question of law was wrong or that the conduct of the proceedings in the Small Claims Court was unfair to the applicant. No complaint on the grounds of unfairness was made.

3. The respondent, Ms Regan Taylor, was initially employed by the applicant, Dennham Pty Ltd t/as Elders Real Estate Weston Creek, on 29 December 1995 as a `temporary' employee. The applicant accepts that between 29 December 1995 and 18 March 1996 the respondent was engaged as a casual employee. The applicant contends, however, that the nature of the respondent's employment changed on 19 March 1996 and from that date on she was employed as a part-time employee. It was on this date that the respondent undertook duties as a receptionist for the applicant. On or around this period the respondent was directed to complete an employee record card. On instructions from her supervisor (Mr Hewitt) the respondent wrote the words `P/T receptionist' beside the words `JOB TITLE'. The respondent received four days' pay between 24 March 1997 and 27 March 1997 that was described in the records as "holiday pay" (which she was told not to tell the other employees about), but she did not receive any other paid sick leave or annual leave or any public holiday pay in all of the almost three years that she was employed as a receptionist. The respondent was paid $10.00 per hour initially; however, this was increased to $11.50 in April 1997 (the Award rate for casual employees apparently having been increased to $11.67 in May 1996). At all times, this hourly rate of pay was significantly above that which a part-time employee was entitled to under the Award but below that of a casual employee. Despite a number of increases in the Award rate over the period of employment, only the one increase was made to the respondent's rate. The respondent's employment ceased with the applicant in late January 1999.

4. When the respondent began her employment with the applicant, the Clerks (ACT) Award 1985 governed the terms and conditions of that employment. However, that Award was varied and recast and in 1996 purported to operate retrospectively with a commencement date of 7 December 1995. That Award retained the title description Clerks (ACT) Award 1985. The Award was further varied and recast in 27 November 1998 and also operated retrospectively with a commencement date of 19 August 1998. The award was retitled Clerks (ACT) Award 1998.

5. Mr Wilson, who appeared for the applicant, submitted that the Magistrate had at the outset erred in law in having regard to the detailed description of part-time employment in clause 12 of the Clerks (ACT) Award 1998 as the respondent had been engaged at a time when the Clerks (ACT) Award 1985 had been retrospectively affected by the 1996 variation but not the 1998 variation. Neither the 1985 Award nor its variation in 1996 contained the detailed employment description that in the 1998 Award provided.

6. What the Magistrate did was to look at how the 1998 Award described part-time employment and measured the matters contained in the description against the facts that she found proved. Mr Wilson was critical of the Magistrate equating the incidents of employment described in the 1998 variation as being the "criteria" for part-time employment. I do not agree that there is substance in that criticism. Whether what is set out in the Award is viewed as "incidents" or "criteria" of part-time employment, the presence or absence of such indicia in the actual employment situation is relevant. It is some indication of the carrying into effect of the respondent's intentions at the time the relationship was entered into. It assists in determining whether the employment relationship was in fact part-time or casual. At the least, it counters in a practical sense any suggestion, absent direct evidence in that regard, that the applicant did not intend to maintain the respondent's employment on a casual basis.

7. This is particularly so because of the way that the Award applies to casual employees. The Award as varied in 1996 and 1998 has consistently described casual employees as those employees other than full-time or part-time. It was never suggested that the respondent was employed as a full-time employee so it was a relevant factor that her employment did not attract any of the incidents of part-time employment provided for in the Clerks (ACT) Award 1998 even though that particular variation of the Clerks (ACT) Award 1985 was not in force at the time of engagement. It can also be said that those incidents were common to the Awards preceding the Clerks (ACT) Award 1998. Mr Wilson could not demonstrate that the 1998 variation altered any existing practice in the industry or provided different incidents of what was regarded in the industry as properly attaching to part-time employment. If during the whole time that the respondent was employed the applicant did not regard the respondent's employment as attracting those incidents of part-time employment, one can readily infer that the applicant intended to employ the respondent as a casual employee.

8. It was pressed by Mr Wilson that the Magistrate could not determine the issue of whether the respondent was a casual employee solely on the basis that the applicant,

... did not comply with the criteria for part-time employment in clause 12 of the Award when it engaged the [respondent] in March 1966.

This is because clause 12, with its detail of the incidents of part-time employment, only appears in Clerks (ACT) Award 1998 which, technically, did not apply at the time of employment. It was this passage of the Magistrate's reasons that Mr Wilson said represented an error of law on the Magistrate's part.

9. However, in my view, it is equally incorrect to say, as Mr Wilson seemed to be submitting that what is provided in the 1998 Award is irrelevant to the question. Mr Wilson cited a passage from the decision of Marshall J in CPSU, Community & Public Sector Union v State of Victoria [2000] FCA 14 (14 January 2000) at [9] and [10],

Whether a person is a casual employee or not is not determined by reference to the Award. The Award simply prescribes many of the terms and conditions of employment of such employees. In this matter it is contended by the applicants that the so-called casual prison officers at the Barwon gatehouse are not truly employed on a casual basis.

Neither is the question of whether an employee is a casual employee or not determined solely by reference to the employer's categorisation of the position, although such consideration is a relevant factor in the overall determination. As is accepted by the parties, the term "casual employee" has no fixed meaning. The true nature of any employment relationship will depend on the facts and circumstances of each case. See Doyle v Sydney Steel Company Limited [1936] HCA 66; (1936) 56 CLR 545 (at 551, 565).

10. The Award, which Marshall J was considering, simply applied to persons "employed on a casual basis". The Award in that case did not purport to describe casual employment. In the case before me, the Clerks (ACT) Award 1985 describes casual employees as "other than weekly employees or part-time employees". I do not regard the refinement of "regular" part-time employees introduced in the Clerks (ACT) Award 1998 as materially affecting this description. It is therefore necessary to exclude engagement on either basis in order to reach a conclusion as to the Award's application. That is a factor in the overall determination whether an employee under this Award is employed on a casual basis and it involves a consideration of what is involved in part-time employment in the particular industry. That is essentially the approach that the Magistrate took.

11. Earlier in her reasons, the Magistrate dealt with the respondent's evidence and the evidence given by Mr Mason, an inspector with the Department of Employment Workplace Relations and Small Business.

12. All the evidence was to the effect that the respondent was paid an hourly rate and that there was no limitation placed on her ordinary hours of employment. Having set up the case in that way, it was for the applicant to point to, or provide evidence that the respondent was a weekly employee on limited hours. The applicant did not give evidence or point to anything other than the description "p/t receptionist" on the employment card and the respondent's evidence that she was told that she was to be a part-time receptionist.

13. The description of her duties as "part-time receptionist" is only a factor to be considered in the context of determining whether the employee has been engaged on a full-time, part-time or casual basis. It may be descriptive of the position or the duties involved. It does not essentially follow that the employment relationship is part-time rather than casual.

14. In my view, what is of more significance is that, in this case, one of the terms of the initial engagement was employment on a casual basis. The rate adopted was $10.00 per hour. The appropriate rate under the Award applying at that time for casual employment was $10.25 (including the 25% casual loading). The applicant's failure to pay the precise applicable rate at the outset only means that from the outset the applicant was underpaying his employee the casual rate. However, what is significant is that the applicant continued to pay the same rate when the respondent commenced to carry out the receptionist duties. No reduction was made in the rate to remove the 25% casual loading.

15. If the employer wished to vary the terms of the initial engagement, it was for the employer to offer those terms and the employee to accept them. In this case, the employer offered a position but made no offer as to whether the employment condition was full-time, part-time or casual. The employee remained a casual employee performing the work required of a part-time receptionist and continued to be paid the amount the employer had determined as the casual rate.

16. Despite Mr Wilson's valiant attempts to say that the Magistrate erred in law, I am not satisfied that she erred in any material way. Her findings considered all of the factual matters necessary to find that the respondent was a casual employee including the facts that,

* there was no specification of the days or hours to be worked;

* the respondent was paid on an hourly basis;

* the respondent was not paid sick leave;

* the respondent was not paid overtime;

* the respondent was not paid for holidays (although some form of payment was paid around Easter 1997 in respect of which she was not to tell the other employees was holiday pay).

17. Whilst the Magistrate referred to what I have described as there being "no specification of the days or hours to be worked" in terms of there being no agreement in writing in that respect, her finding amounts to the same thing. What I take her findings to be are that the respondent's evidence and the inferences fairly drawn from it establish the matters which lead to the conclusion that the respondent was employed as a casual employee. In doing so, the Magistrate is not confining her consideration to a non-compliance with the criteria for part-time employment in the 1998 Award or strictly applying it, but is determining the nature of the employment relationship entered into by the parties having regard to how the 1998 Award crystallises industry conditions and practice.

18. It may be said that the Magistrate has said things that are not technically correct and has not expressed her reasons with precision. However, I am satisfied that the Magistrate has addressed the pertinent issues and has considered all the facts and circumstances to make the essential findings of fact to conclude that the respondent was a casual employee. The decisive question is whether the decision is correct in law and I am satisfied that it is. The exact process of reasoning employed to arrive at that decision is another matter (cf State Rail Authority (NSW) v Customs [1991] FCA 610; (1991) 33 FCR 211 at 217). I refuse leave to appeal.

19. The respondent's right to recovery arises under s 179 of the Work Place Relations Act 1996 (Cth). It is a proceeding in a matter arising under that Act even though it may be said not to arise under that Act (see Thompson v Holder [1989] FCA 493; (1989) 21 FCR 467 at 469) and s 347 of that Act will preclude an order for costs being made unless the proceeding was instituted vexatiously or without reasonable cause. I am not able to say that is so. There will be no order as to costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 28 June 2001

Counsel for the Applicant: Mr J Wilson

Solicitor for the Applicant: Wilson - Legal

Counsel for the Respondent: Mr G Corr

Solicitor for the Respondent: Porter Parkinson & Bradfield

Date of hearing: 29, 30 January 2001

Date of judgment: 28 June 2001