Federal Court of Australia

Hazell v Sewell [2021] FCAFC 76

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The order made by the Federal Circuit Court on 11 September 2020 be set aside and in lieu thereof it be ordered that:

(a)    it be declared that the applicant was employed by the respondent as a casual performer category 2 within the meaning of cl B9.3 in Sch B to the Live Performance Award 2010;

(b)    the matter be fixed for hearing to determine the amounts, if any, owing to the applicant under the Award, whether the respondent contravened the Fair Work Act 2009 (Cth) as alleged and, if so, the amount of any penalties and any other outstanding issues.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES J:

1    The appellant, Julian Hazell, was employed by the respondent, Anthony Sewell, as a ‘DJ’ or disc jockey on a casual basis during the period 2 October 2010 to 29 September 2018. Mr Sewell ran a business called Mobile Millennium DJ’s.

2    At the trial before the Federal Circuit Court there had been issues as to whether the relationship between Mr Hazell and Mr Sewell was, as Mr Sewell had contended, that of an independent contractor and principal. Mr Hazell contended that he had been engaged as a casual performer and was covered by the provisions of the Live Performance Award 2010 which is a modern award under the Fair Work Act 2009 (Cth). The trial judge found that the relationship between them was that of casual employee and employer.

3    His Honour found that Mr Sewell’s business was one that fell within the meaning of “live performance industry” as defined in the Award, involving the production of audio and occasionally audio-visual material and also, arguably, multimedia, for performances.

4    His Honour found that, on occasion, Mr Sewell provided services to events that were open to the general public in which there was a performance as part of the live performance industry within the meaning of the defined terms in the Award, but that these were atypical, or not a major or substantial part, of Mr Sewell’s business.

Central Issue

5    As refined during the argument of the appeal, the central issue between the parties is whether the trial judge was correct in concluding that Mr Hazell was not a “performer” within the meaning of the Award because any performances that he gave were not ones falling within the definition of “performance”. Mr Hazell contended that he fell within the definition of, and was entitled to be paid, as a casual in “performer category 2” as defined in cl B9.3 in Sch B of the Award.

6    The Award, relevantly, included the following definitions (cl 3) and provisions:

live performance industry means producing, including pre-production and postproduction, staging, lighting, audio and audio/visual, presenting, performing, administration, programming, workshops, set and prop manufacture, or otherwise undertaking live theatrical, performance art, operatic, orchestral, dance, erotic, variety, revue, comedy, multi-media, choral, or musical performances, productions, presentations, workshops, rehearsals or concerts, including the provision, sale, service or preparation of food or drink and also including selling tickets by any means, for or in or in connection with any such performances, productions, presentations, workshops, rehearsals or concerts, and including the operation of venues or other facilities, whether permanent or temporary, utilised for such performances, productions, presentations, workshops, rehearsals or concerts are performed or presented in the presence of an audience, or are recorded by any means

performance means a performance given by employees which is open to the general public on payment of an admission charge and/or for which the employer receives payment or other benefit

performer is an employee who takes part in a performance and includes an actor, singer, dancer, musician, understudy/swing performer, puppeteer, compere, comedian or any other type of performer

4.     Coverage

4.1     This industry award covers employers throughout Australia in the live performance industry and their employees in the classifications set out in this award to the exclusion of any other modern award.

B.9.3     Performer Category 2

(a)     A performer who is employed as an act or part of an act in theatrical/live entertainment performances and who is responsible for the primary development of the work to be performed.

  (b)     Indicative tasks are:

     (i)     as per Category 1; and

(ii)    tasks relating to the development of the work to be performed, such as but not limited to:

•    developing the script and concept for the performance;

•    selecting the music; and

•    generally determining the content and presentation of the performance.

7    The reference in cl B9.3(b)(i) to “Category 1” referred to the classification of a performer category in cl B7.2, for which the indicative tasks included in cl B7.2(b)(vii) “any other type of performing”.

8    The trial judge found that Mr Hazell could not satisfy the definition in cl B9.3(a) because he was not a “performer” as defined in the Award. His Honour held that, although Mr Hazell performed to a section of the public, his performances were limited to invitees and were not open to the general public. The trial judge said that he came to that conclusion not without hesitation and regret. But, he construed the definition of “performance” as requiring, in all instances, that the event be “open to the general public” and that most of the DJ activities that Mr Hazell performed occurred at private functions. As the trial judge recognised, the result at which he arrived in concluding that disc jockeys or DJs were not covered by the award appeared to be “anomalous… despite its obvious intent to provide broad coverage to the field”.

Mr Sewell’s submissions

9    Mr Sewell argued that the trial judge’s construction of the Award was correct in that the definition of performance required that, for all purposes, the performance given by an employee be one open to the general public. He contended that, where the issue is whether an employee is engaged in a particular classification or class of work, it is necessary to consider all aspects of what the employee does to see whether or not it is captured by the terms of the relevant industrial instrument, such as the Award. He invoked the principle that is used to choose between which of two industrial instruments applies to particular employment, namely that the tribunal of fact must ascertain what was the major and substantial employment of the relevant employee. Building on that concept, Mr Sewell submitted that an essential characteristic of employment as a “performer” within the meaning of the Award required that any performances constituting the major or substantial part of the work involved be open to the general public, and that, accordingly, because Mr Hazell’s work as a DJ, essentially, was before private audiences, he could not be classified as a performer under the Award.

10    Mr Sewell argued that the correct construction of the definition of “performance” was to read it as follows:

performance means a performance given by employees which is open to the general

public:

(a)     on payment of an admission charge; and/or

(b)     for which the employer receives payment or other benefit.

11    Mr Sewell contended that the construction of cl B9.3 of the Award did not involve importing or resorting to the use of any general notions of fairness and that the Court should not, in effect, arrive at a construction that departed from the literal meaning of the definition of “performance” merely because, otherwise, Mr Hazell may not have been covered by the Award.

12    Mr Sewell submitted that if Mr Hazell were not covered as a “performer” within the definitions and classifications in the Award, that did not entail that he might not have been be covered by some other industrial instrument or be entitled to the protections afforded by the national minimum wage order. Mr Sewell emphasised that Mr Hazell’s case at trial was that he was covered by the Award as a performer category 2 and that he had not asserted or sought relief that he was entitled to be paid on any other basis.

Consideration

13    The principles for construing awards and other industrial instruments are well settled. It is necessary to read them as a whole, as Rares, Perram and Charlesworth JJ explained in Treasury Wine Estates Vintners Ltd v Pearson (2019) 268 FCR 12 at 29 [73] namely, that it is necessary:

… to read the agreement as a whole and construe it in accordance with established principle. In Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (2018) 264 FCR 342 at [56]-[58], Rares and Barker JJ said (and see also at [133] per Flick J and Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 at [65] per White J, with whom Mortimer and Bromwich JJ agreed):

It is important to have regard to the industrial purpose of the Yallourn agreement and the commercial and legislative context in which it applies when construing it, including cl 28 itself as a whole: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 249 [13] per Gleeson CJ and McHugh J, 270-271 [96] per Kirby J, 282-283 [129]-[131] per Callinan J, and see too at 253 [30] per Gummow, Hayne and Heydon JJ. Both Kirby J and Callinan J expressly approved (at [96], [129]-[130]) and Gleeson CJ and McHugh J applied (at [13]), what Madgwick J had said in Kucks v CSR Ltd (1996) 66 IR 182 at 184, namely:

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

(emphasis added)

Although that decision concerned an award, Madgwick J’s observations have equal application to the construction of enterprise agreements made under the Fair Work Act. An enterprise agreement must be construed in its industrial and legislative context as an agreement made between parties engaged in an employment relationship in which employee organisations, such as the five unions, can, and often will, have a workplace right under ss 341(1) and or 183(1) of the Fair Work Act to play a part, including as a party to it. Those persons may not have been assisted by lawyers in the precise framing and expression of its terms.

14    Mr Sewell was unable to provide any satisfactory policy reason as to why the Award was intended to cover only a performance open to the general public notwithstanding that the employee may be giving a performance for which his employer received payment or other benefit.

15    Importantly, the Award covered employers in the live performance industry and their employees in the classifications set out in it, to the exclusion of any other modern award (cl 4.1).

16    The definition of “live performance industry” covered a range of activities including “performances, productions, presentations, workshops, rehearsals or concerts”. In addition, those activities included the “provision of, sale, service or preparation of food or drink” as well as the selling of tickets by any means. The definition did not apply only to a performance, or require that the activities that it covered must all be open to the general public, or that involve the sale of tickets, payment of an admission charge for entry or the employer receiving some payment or benefit.

17    The definition of “performance” in the Award connected what the employee did with some form of consideration, being either payment of an admission charge and or the employer receiving some payment or other benefit. The definition can be read, contrary to Mr Sewell’s preferred construction, as providing two alternate kinds of performance given by the employee, namely, one that either is open to the general public on payment of an admission charge or one for which the employer receives payment or benefit. If construed in this way, the definition covers a much wider range of employees in the live performance industry than would be the case with a limitation that any performance must be open to the general public. The broader construction fits harmoniously within the wide field intended to be covered by the Award (in cl 4.1) as reflected in the definition of live performance industry.

18    In addition, it is important to have regard to other areas of activity covered by the Award, to ascertain what Madgwick J described as “its evident purposes”: Kucks v CSR Ltd (1996) 66 IR 182 at 184. The Award covered, among other performances, country tours (cl 26.2(b)) and school tours, which involved “the ordinary hours during which a school performance may be held” (cl 26.2(f)). It also included classifications of performers such as, in Pt 6, a striptease artist, being a person performing, among others, “a striptease act… private dance” or similar activities, or “a bar attendant or waiter, personnel wearing skimpy, lingerie, bikini, see-through, topless or g-string costumes or going nude” (cl 36.1) and, in Pt 7, activities of production and support staff.

19    Importantly, the classification of a performer category 2 focussed on what the employee was employed to do, namely to be an act, or a part of an act, in theatrical or live entertainment performances, and be responsible for the primary development of the work to be performed. The trial judge found that this was the kind of work that Mr Hazell carried out while employed by Mr Sewell but that, because this was not at events open to the general public, he did not give “performances” as defined in the Award.

20    His Honour erred in giving undue weight to the words “is open to the general public” in the definition of “performance.” Those words, if applied in the way the trial judge read them, lead to an interpretation that he recognised was both anomalous and inconsistent with the broad coverage intended by the Award. That is why his construction was wrong when the natural and ordinary meaning results in a construction consistent with the broad coverage intended by the Award.

21    In Zhu v Treasurer (NSW) (2004) 218 CLR 530 at 559 [82], Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ said that it is necessary to construe a commercial contract or document “so as to avoid it making commercial nonsense or working commercial inconvenience”. And, Lord Reid said in Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235 at 251E:

The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear.

(emphasis added)

22    The ordinary and natural meaning of the definition of “performance” seeks to capture any performance given by an employee that generates payment of an admission charge, where the general public could attend, or a payment or other benefit that the performer’s employer receives.

23    Where the general public pays an admission charge, often the employer will not be the owner, or in control, of the venue or means of collecting that charge although, in the ordinary course, the employer will receive some payment or other benefit from the person who imposed the admission charge. Hence, in the definition of “performance” the words “a performance given by employees” create the industrial connection of the employment by reference to the performance giving rise to a monetary or other benefit that the employer receives, or, where it is open to the general public, on payment of an admission charge, which can also involve the employer receiving a payment or other benefit. The employee will be covered by the Award because the employer will receive a payment or other benefit and, where the performance is open to the general public, from whoever has collected the admission charge.

24    The definition of “performance” seeks to capture a performance in which the employee does work and other people receive reward for that work so that the employer must pay the employee in accordance with the Award for the performance. That is so regardless of whether the performance is one open to the general public or one in which the employer simply receives the payment or benefit directly. Hence, a school tour, being a performance where live entertainment can be expected to be provided to school children, could hardly be described as being open to the general public. Coverage for a school tour under the Award cannot have been intended only to be for an event held for the purposes of school fundraising, or the like, where persons connected with the school seek to involve the general public in providing money for school programs or events. Likewise, it is difficult to think that a striptease artist performing at a private dance could be described as a person whose performance is open to the general public at the time, although it is not necessary to analyse that situation in any detail.

25    It is critical to appreciate that the Award applies to the live performance industry and to performances that occur in it given by employees. There is no reason to conclude that the definition of performer narrowed the coverage of the Award in relation to only employees whose performances were open to the general public.

26    For these reasons the trial judge erred in his conclusion that Mr Hazell was not an employee covered by the classification of a performer category 2 in cl B9.3 and entitled to be remunerated in accordance with the Award.

The unresolved issues

27    The trial below occurred as the hearing of a separate issue on certain aspects of liability, principally on the question of whether or not Mr Hazell was an independent contractor or an employee, and if the latter, covered as a performer category 2 under the Award.

28    The judge ordered a trial of separate issues on 13 May 2019. Those issues also involved whether Mr Sewell was liable to pay civil penalties for contraventions of the obligations of an employer to pay superannuation and to give payslips under s 536 of the Fair Work Act to Mr Hazell as an employee. The hearing was delayed by, among others, the intervention of the global pandemic in early 2020. However, the trial judge appears to have overlooked the need to make findings on all of the matters the subject of the order for the trial of the separate issues and instead, his Honour dismissed the proceedings.

29    Mr Sewell accepted that the trial judge had erred in not dealing with matters that were still unresolved by the construction of the Award and that the matter needed to be remitted to the Federal Circuit Court for that to occur. The trial judge is no longer a judge of that Court. It will be necessary for another judge to determine the remainder of the issues, including the amount which Mr Hazell should have been paid over the period of his casual employment and what, if any, penalties should be imposed on Mr Sewell for contravening the Fair Work Act.

30    Mr Hazell sought an order under s 570(2)(b) of the Act that the solicitor for Mr Sewell pay the costs of the appeal in relation to the late concession that the matter needed to be remitted to the Federal Circuit Court in any event to determine the issues relating to penalties, if any. Mr Hazell was unrepresented at the trial and until pro bono counsel accepted a referral by the Registrar to act for him in this appeal. He contended that Mr Sewell’s solicitor as a knowledgeable practitioner should have caused the proceeding to be relisted or told Mr Hazell that he could do so, once it was apparent that the trial judge had overlooked deciding the unresolved claim for penalties.

31    Mr Hazell’s claim for costs should be rejected. There was no unreasonable act or omission by Mr Sewell or his solicitor within the meaning of s 570(2)(b) of the Fair Work Act. Once Mr Hazell’s written submissions on the appeal pointed out that his Honour had overlooked the penalties issue, Mr Sewell promptly conceded that the matter needed to be remitted. It seems obvious that, until counsel for Mr Hazell discerned the true position, no one, including the trial judge, perceived that there had been an innocent oversight, not an unreasonable act or omission.

Conclusion

32    For these reasons the appeal must be allowed and the proceeding remitted to the Federal Circuit Court to be determined in accordance with law. There should be a declaration that Mr Hazell was employed by Mr Sewell as a casual performer category 2 in the period between 2 October 2010 to 29 September 2018 under the Award.

Associate:    

Dated:    21 May 2021

REASONS FOR JUDGMENT

FLICK J:

33    The Appellant in the present proceeding, Mr Julian Hazell, was retained by the Respondent (Mr Anthony Sewell). The Respondent operated a business known as Mobile Millennium DJ’s. That business provided disc jockey services for payment. Mr Hazell was retained to provide such services.

34    An issue which once divided the parties was whether Mr Hazell was an independent contractor or an employee. That issue has fallen to one side. Before this Court it was accepted that Mr Hazell was a casual employee.

35    The issue which continued to divide the parties before this Court was whether Mr Hazell was covered by the Live Performance Award 2010 (the “Award”). Mr Hazell was not paid the greater amount provided for in that Award. That issue was resolved adversely to Mr Hazell by the Federal Circuit Court: Hazell v Sewell [2020] FCCA 2446 at [46]. The Federal Circuit Court concluded that he was not covered.

36    Mr Hazell appealed to this Court.

37    The appeal is to be allowed and the proceeding is to be remitted to the Federal Circuit Court for the determination of (inter alia) the quantum of any monies to be paid to Mr Hazell in respect to outstanding payments, superannuation payments and penalties (if any).

38    Clause 4.1 of the Award provides for the coverage of the Award as follows:

4.1    This industry award covers employees throughout Australia in the live performance industry and their employees in the classifications set out in this award to the exclusion of any other modern award.

That Clause, it will be noted, applies for the coverage of “employers … in the live performance industry” and “employees in the classifications set out in this award…”. The “classification” pleaded in Mr Hazell’s Statement of Claim as filed in the Federal Circuit Court as that applicable to Mr Hazell was that in cl B.9 of Sch B of the Award, a “Live Performance Employee Level 9”, and within that clause a “Performer Category 2” (cl B.9.3 of the Award). That classification again refers to a “performer” and “performances”.

39    The terms “performance” and “performer” and the phrase “live performance industry” are defined in cl 3 as follows:

performance means a performance given by employees which is open to the general public on payment of an admission charge and/or for which the employer receives payment or other benefit

performer is an employee who takes part in a performance and includes an actor, singer, dancer, musician, understudy/swing performer, puppeteer, compere, comedian or any other type of performer

...

live performance industry means producing, including pre-production and post-production, staging, lighting, audio and audio/visual, presenting, performing, administration, programming, workshops, set and prop manufacture, or otherwise undertaking live theatrical, performance art, operatic, orchestral, dance, erotic, variety, revue, comedy, multi-media, choral, or musical performances, productions, presentations, workshops, rehearsals or concerts, including the provision, sale, service or preparation of food or drink and also including selling tickets by any means, for or in or in connection with any such performances, productions, presentations workshops, rehearsals or concerts, and including the operation of venues or other facilities, whether permanent or temporary, utilised for such performances, productions, presentations, workshops, rehearsals or concerts are performed or presented in the presence of an audience, or are recorded by any means

(without alteration)

40    Whether reference is made initially to cl 4.1 and the coverage of the Award or to the classification within that Award said to be applicable to Mr Hazell, common to both is the definition of the term “performance”.

41    The Federal Circuit Court Judge considered it necessary to consider whether or not a “major or substantial aspect” of Mr Hazell’s employment involved a “public performance”, a matter upon which Mr Sewell placed emphasis. The Federal Circuit Court Judge relevantly concluded:

[45]    The Court accepts the Respondent’s submissions in this regard though not without hesitation and regret. The evidence indicates that the principal or major or substantial aspect of the Applicant’s employment did not involve a public performance and thus he was not conducting a performance as defined in the Award. The Applicant was performing to a section of the public, i.e. those members of the public invited to an event, but that does not suffice for present purposes. The meaning of words ‘the public’ and whether this includes a section of the public, was discussed by the plurality of the High Court in Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201.

[46]    It seems anomalous that DJs are not covered by the Live Performance Award 2010 despite its obvious intent to provide broad coverage in the field. The drafting on the Award provisions is complex — perhaps unnecessarily so. Nonetheless, and consistent with prevailing norms of Award interpretation, on the evidence before the Court, the Applicant is not a Performer Category 2, and is thus not covered by the Award. It must follow that his case fails and his Statement of Claim must be dismissed.

(without alteration)

It is respectfully concluded that the Judge was wrong in so concluding.

42    The terms of an award are to be construed in a practical manner and within the industrial environment in which the award was drafted: Kucks v CSR Ltd (1996) 66 IR 182 at 184 per Madgwick J (“Kucks”). So, too, are the terms in an award as to its coverage to be construed “in a way likely to be understood in the relevant industry rather than with legal niceties and jargon”: cf. WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197], (2018) 280 IR 191 at 235 cited in Finance Sector Union of Australia v Unimoni Pty Ltd [2019] FCA 1128 at [125] per Flick J. See also: King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 per Wheelahan J. So much was accepted by the Federal Circuit Court Judge by reference to Kucks: [2020] FCCA 2446 at [26].

43    The term “performance” – as employed in the definition of the term “performer”, the phrase “live performance industry” and cl B.9.3 – is to be properly construed as extending to both:

    “…a performance given by employees which is open to the general public on payment of an admission or charge”; and

    “…a performance given by employees …. for which the employer receives payment or other benefit.”

To confine the coverage of the Award to only performances “open to the general public” is, with respect, erroneous and an unwarranted constraint upon the coverage provided for in the Award.

44    So much, it is respectfully concluded, follows from:

    the coverage provided for in cl 4.1 extending to the “live performance industry” and the breadth of the definition of the phrase “live performance industry” – that breadth of application extending to matters such as “set and prop manufacture” and “rehearsals” (being activities which may not or would not be generally “open to the general public”);

    the terms of the definition of “performance” – that definition contemplating that “employees” may fall within both the initial description of “employees” engaged in a performance “open to the general public” and also performance for “which the employer receives payment or other benefit”; and

    the natural and ordinary meaning of the definition of the term “performance” – that natural and ordinary meaning contemplating both performance “open to the general public” and a “performance given by employees … for which the employer receives payment or other benefit.”

45    Perhaps expressed differently, it would be a curious construction of the term “performance” to give that term a confined construction in circumstances where cl 4.1 and the definition of “live performance industry” manifests a width of application. It would require express words or words of necessary implication to carve out from the definition of the term “performance” those employees engaged in performances which may not be “open to the general public” but performances in respect to which the employer nevertheless “receive[d] payment or other benefit”. Even if there be ambiguity in the definition of the term “performance”, any such ambiguity should be resolved in giving effect to the coverage of the Award in a manner consistent with the width of activities provided for in the definition of “live performance industry”.

46    Consistent with s 570 of the Fair Work Act 2009 (Cth), there should be no order for costs. There is no reason to depart from the general rule that costs should not be ordered.

Associate:    

Dated:    21 May 2021

REASONS FOR JUDGMENT

KERR J:

47    I have had the very considerable benefit of reading the reasons in draft of both Rares J and Flick J.

48    While each writes separately, the reasons of Rares J and Flick J are logically consistent each with the other. In respect of all substantive issues, their Honours’ reasons reflect a shared understanding of the applicable legal principles. Both then apply those shared principles to the disposition of the appeal. I come to the same conclusion as do their Honours. I respectfully adopt each of their Honours’ reasoning as my own and have nothing to add. I join with Rares J and Flick J in the orders they propose the Court make.

Associate:

Dated:    21 May 2021