Federal Court of Australia

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 of the Federal Circuit Court of Australia of 7 July 2021 be set aside.

3.    The matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for hearing and determination.

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

REASONS FOR JUDGMENT

RANGIAH AND DOWNES JJ:

1    We have had the considerable advantage of reading the judgment of McElwaine J in draft. We agree generally with his Honour’s reasons, except as to Grounds 4 and 13(a) of the Notice of Appeal. In our respectful opinion, those grounds should be upheld.

2    Ground 4 is expressed as follows:

4.    The learned judge erred in finding that the First Respondent did not terminate the Appellant’s employment because of or for reasons which included the Complaint or Inquiry by failing to take into account the evidence of the Second Respondent that:

a.    if not for his telephone conversation with the Appellant on 23 December 2018, the Appellant’s employment would not have been terminated;

b.    following the Complaint or Inquiry, the Second Respondent thought to himself that if the Appellant considered he was worth more money he should pursue other employment; and

c.    he was concerned that other employees would ask for more money if they became aware of the Compliant of [sic] Inquiry.

3    The ground is concerned with the primary judge’s conclusion that the respondents did not contravene s 340(1) of the Fair Work Act 2009 (Cth) (FW Act). That conclusion is also the subject of Ground 13(a), which is expressed as follows:

13.     The learned judge erred by failing to find that the First Respondent contravened:

a.     section 340 of the Act by terminating the Appellant’s employment because of the Complaint or Inquiry.

4    Section 340(1)(a)(ii) provides that a person, “must not take adverse action against another person … because the other person … has … exercised a workplace right”.

5    The primary judge reasoned that s 340(1) of the FW Act was not contravened because: first, the provision does not apply to casual employees; second, the applicant had not exercised any “workplace right”; and, third, even assuming the applicant exercised a “workplace right”, he was not dismissed because he had exercised that right.

6    As has been explained by McElwaine J, the primary judge erred in holding that s 340(1) does not apply to “casual employees” and also in finding that the appellant was a “casual employee”. Further, as McElwaine J has held, the primary judge erred in finding that the appellant had not exercised a “workplace right”. The appellant did so (at least) by making an inquiry in relation to his employment within s 341(1)(c)(ii) of the FW Act as to whether he would be paid overtime rates for the additional work required by the employer.

7    That leaves for consideration the primary judge’s finding that the appellant was not dismissed because he had made that inquiry. Ground 4 of the Notice of Appeal challenges the primary judge’s acceptance of the second respondent’s evidence to the effect that the appellant’s employment was not terminated because of, or for reasons which included, the making of the inquiry.

8    As McElwaine J has explained, the primary judge’s acceptance that, “the matters about pay did not cross [the second respondent’s] mind when he decided to dismiss the [appellant]” was critical. It was acceptance of that evidence which led the primary judge to find that the first respondent had discharged its onus under s 361(1) of proving that the appellant’s employment was not terminated because he had made the inquiry.

9    The reasons expressed by McElwaine J for rejecting Ground 4 commence with a premise that counsel for the appellant acknowledged that the ground can only succeed if the primary judge’s credibility findings are demonstrated to be wrong by incontrovertible facts or uncontested testimony, or are glaringly improbable, or contrary to compelling inferences. His Honour then reasons that the findings cannot be so described.

10    In our respectful opinion, it is apparent that the appellant raised and maintained a second argument as to why the primary judge’s credibility findings involved error. That argument is that the primary judge overlooked substantial, clearly articulated submissions concerning why the second respondent’s evidence that the appellant’s employment was not terminated because of the inquiry should not be accepted.

11    In the appeal, the appellant’s written submissions included the following:

23.    The Appellant does not rely on his own evidence in support of this ground of appeal. Rather, it is submitted that the evidence of the Second Respondent reveals that the Complaint was a reason for the Dismissal. Further, the findings of the primary judge on this issue were at odds with, glaringly improbable in light of, and contrary to compelling inference which arise from, a combination of the following evidence of the Second Respondent:

a.     In response to the Complaint the Second Respondent withdrew the offer to undertake manure runs and said “don’t worry about it then” [188].

b.     The Second Respondent felt the Complaint was disrespectful and uncalled for (T51.35-45).

c.     The Second Respondent considered the Appellant was being remunerated fairly and understood the Complaint as a request for more money (T51.45).

d.     The Second Respondent wasn’t prepared to pay the Appellant for extra hours (T49.15).

e.     After the Conversation, the Second Respondent had a think about the Appellant’s “efficiency” (T51.15). The Second Respondent then probably undertook a “review” in early January 2019 (T52.20).

f.     When asked if the Dismissal would have occurred if not for the Conversation, the Second Respondent conceded “probably not” (T53.10).

g.     Following the Complaint, the Second Respondent thought that if the Appellant considered he was worth more money he should work elsewhere (T50.35-40).

h.     The Second Respondent describes the Complaint as evidence of “rot” setting in which required that he “bite the bullet” to avoid rot spreading through the company (T55.20-30).

i.     The Second Respondent explained that by “spreads through the company” he was concerned that if other employees were to hear of the Appellant asking for more money, they might do the same (T55.20-30).

24.    The primary judge erred in giving no consideration to matters (e) to (i) above. The compelling inference that arises from those facts alone is that the Complaint was of great concern to the Second Respondent and a substantial and operative reason for the Dismissal.

(emphasis added.)

12    In the course of argument, counsel for the appellant confirmed that an aspect of his argument was that it was an error of law for the primary judge to have failed to consider the appellant’s submissions concerning the matters set out at para 23(e)–(i) (the credibility arguments).

13    The second respondent’s evidence was that he had made the decision to dismiss the appellant only because of his lack of efficiency. The appellant’s case was that at least one reason for his dismissal was that he had made the inquiry about payment for overtime.

14    The primary judge considered the credibility of the second respondent’s evidence concerning the reasons for the dismissal in the following passages:

203    The evidence of the Second Respondent must be scrutinised. The Second Respondent said that he thought that the Applicant was disrespectful during the conversation of 23 December 2018. The Second Respondent said that respect between employer and employee is essential. It was put to the Second Respondent that he was concerned that the Applicant would keep asking him about pay, and so that was the reason that he dismissed the Applicant. The Second Respondent denied this.

204    The Second Respondent said, in evidence before me, that there was no work left for the Applicant. He said that a driver needed to be young and fit to do the milk run and that the Applicant did not fit that bill anymore. He said that his plan was to use the Applicant to do farm work. He said that he was looking for efficiencies, and he told the Applicant that he was terminating the employment because of a lack of efficiency.

205    The Second Respondent said that he had been considering the efficiency of his business for some time. He said that the Applicant was not doing the same number of runs and rarely did the milk collection by January 2019. The Second Respondent became more reliant upon a contractor to be delivering manure.

206    The Second Respondent conceded that he had written in the “separation certificate” that the reason for the cessation of employment was “unfortunately position became annulled due to company restructure”. The Second Respondent said that he believed that this reason and “efficiencies” meant the same thing.

207    The Second Respondent said that the matters about pay did not cross his mind when he decided to dismiss the Applicant.

208    I accept that evidence. This means that even if dismissal from casual employment was adverse action, and even if the Applicant had established that he had exercised a workplace right, the First Respondent has discharged their onus and proven, to my satisfaction, that the dismissal was not because of a prohibited reason.

15    The primary judge referred at [207] to the second respondent’s evidence that, “the matters about pay did not cross his mind when he decided to dismiss the Applicant”, and found, “I accept that evidence”. His Honour offered no explanation for why he accepted that evidence. In DL v R (2018) 266 CLR 1; [2018] HCA 26, the plurality observed at [33], “reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion”. In Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136, the Queensland Court of Appeal observed at [34] that the rational resolution of an issue involving the credibility of witnesses will usually require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation. That is also true of material contradictions within the evidence of a witness whose credibility is in issue.

16    Although the relevant ground of appeal does not directly challenge the adequacy of the reasons, their content, particularly what was not addressed, is relevant to the drawing of an inference as to whether the primary judge considered the credibility arguments made by the appellant: cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [69].

17    The respondents have not disputed that the appellant clearly raised the credibility arguments before the primary judge, nor that the evidence they described was in fact given by the second respondent. Counsel for the respondents accepted in the course of submissions that his Honour’s reasons did not deal with those arguments.

18    The primary judge’s reasons made no reference to the credibility arguments or the passages of evidence they described. These were substantial arguments which warranted consideration. For example, it was only after the inquiry was made on 23 December 2018 that the second respondent “had a think” about the appellant’s efficiency, indicating a close temporal relationship between the appellant’s inquiry and his subsequent dismissal on 4 January 2019, and suggesting a causal relationship. In addition, the second respondent evidently thought that if the appellant considered he was worth more money, he should work elsewhere. The second respondent’s concession that the dismissal would probably not have occurred if not for the conversation seems, on the face of it, inconsistent with his evidence that the appellant’s employment was terminated only because of his lack of efficiency. The second respondent’s evidence that he had to “bite the bullet” to avoid “rot” spreading through the company, by which he meant that he was concerned that other employees might also ask for more money, seems inconsistent with acceptance of the second respondent’s evidence that matters about pay did not cross his mind. The appellant’s arguments concerning these aspects of the second respondent’s evidence clearly cast a shadow over the veracity of his evidence concerning his reasons for the dismissal.

19    In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088, in the context of administrative decision-making, Gummow and Callinan JJ held at [24] that, “[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord … natural justice”. This passage was applied in the context of a failure by a court to engage with a submission made by a party in Goodwin v Commissioner of Police [2010] NSWCA 239 at [40], [43]; see also, Liddell Coal Operations Pty Limited v Hector [2021] NSWCA 47 at [53]; Day v SAS Trustee Corporation [2021] NSWCA 71 at [15].

20    A court may also fall into appealable error by overlooking important evidence: see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 at [64], [94], [139], [155]; Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Ward v Loumbos [2017] NSWCA 35 at [64]; Reliance Financial Services (NSW) Pty Ltd v Abdallah [2013] NSWCA 125 at [97]–[98]. In Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1; [2002] VSCA 189, the Victorian Court of Appeal observed at [157]:

The duty to deal with facts or evidence is not absolute. The evidence must be significant in the sense that, unless disposed of, it stands in the way of the court's conclusions. The court need not deal in terms with evidence when its importance falls away because of the manner in which the court disposes of the case. Nevertheless, if evidence is significant, it is not to be peremptorily shunted aside or ignored.

(footnote omitted.)

21    In our respectful opinion, the primary judge overlooked, and failed to consider or engage with, the appellant’s argument to the effect that the second respondent’s evidence that matters about pay did not cross his mind should be rejected because other aspects of his evidence were inconsistent with that evidence. That argument was substantial, was based on significant evidence and was clearly articulated. The primary judge erred by failing to consider the appellant’s credibility arguments and the evidence upon which those arguments were based.

22    The appellant’s credibility arguments were material in the sense that their acceptance may have made a difference to the outcome. It is not to the point that if the arguments had been considered, his Honour may have nevertheless accepted the evidence of the second respondent as credible. The point is that he may not have done so: cf Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145-147.

23    That leaves a further question. Should the Court attempt to do that which the primary judge failed to do and consider whether the second respondent’s evidence should be accepted as credible in light of the appellant’s arguments? In our opinion, that course is not appropriate, since the Court does not enjoy the advantages of a trial judge in evaluating the second respondent’s evidence: cf Stead at 145-146. The matter should be remitted for a retrial in respect of the alleged contravention of s 340(1) of the FW Act.

24    We agree generally with the reasoning of McElwaine J in respect of Grounds 5 and 6 of the Notice of Appeal that s 15A(1) of the FW Act is a “comprehensive” provision, but prefer to give our own reasons for that construction.

25    The FW Act distinguishes between “full-time employees”, “part-time employees” and “casual employees”. The issue of whether the appellant was a “casual employee” under the FW Act arose in several contexts, including the primary judge’s (incorrect) opinion that s 340 does not apply to casual employees, the alleged misrepresentation in contravention of s 345 that the appellant was a casual employee, the alleged underpayment of the appellant and the alleged failure to keep the records required by s 535(1) and by reg 3.33(2) of the Fair Work Regulations 2009 (Cth) (the FW Regulations).

26    Section 15A of the FW Act defines “casual employee” as follows :

15A    Meaning of casual employee

(1)    A person is a casual employee of an employer if:

(a)    an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

(b)    the person accepts the offer on that basis; and

(c)    the person is an employee as a result of that acceptance.

27    In the appeal, the appellant argued that an employee can be a “casual employee” under the FW Act by either falling within s 15A(1), or, within the general law conception of a “casual employee”. On the other hand, the respondents submitted that if an employee does not fall within s 15A(1), the employee cannot be a “casual employee” for the purposes of the FW Act.

28    Section 15A(1) of the FW Act is ambiguous. One interpretation is that a person is a casual employee of an employer under the FW Act “if (and only if)” the conditions in paras (a)–(c) are satisfied. Under this construction, s 15A(1) provides an exclusive and exhaustive definition. An alternative construction is that a person is deemed to be a casual employee for the purposes of the FW Act if the conditions in paras (a)–(c) are satisfied, but can also be a casual employee if the person falls within the general law meaning of that expression. Under this alternative construction, s 15A(1) provides only an inclusive, and not an exhaustive, definition.

29    An indication that s 15A(1) is intended to provide an exclusive and exhaustive definition is found in s 12, the “Dictionary” provision for the FW Act. Section 12 provides relevantly, “In this Act … casual employee: see section 15A”. That language is consistent with s 15A providing a comprehensive definition of “casual employee” wherever that expression appears in the FW Act. Otherwise, “casual employee” would have been defined in s 12 to “include” the meaning in s 15A, as was done with defined terms such as “conduct”, “industrial association”, “modifications”, “occupier”, “premises”, “reinstatement”, and numerous others.

30    Confirmation that the definition in s 15A is intended to be exclusive and exhaustive is found in the Revised Explanatory Memorandum for the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020 and the Second Reading Speech for that Bill. The Revised Explanatory Memorandum states:

Casual employees

Certainty about employment arrangements, including the rights and obligations of both parties, is essential to ensure that business has confidence to employ and employees receive their correct entitlements. This Bill will introduce a statutory definition of casual employee that focuses on the offer and acceptance of employment and draws on common law principles.

31    In the Second Reading Speech, the then Attorney-General and Minister for Industrial Relations said, relevantly:

… It is clear that the current state of the law in relation to casual employment has caused widespread mistakes and confusion for employers and employees, which, with the associated consequences and costs, gives rise to the genuine need for legislation to adjust the rights, claims and obligations of these employers and employees.

The statutory definition introduced in this bill incorporates key aspects of the common law as expressed in recent court decisions such as Skene and Rossato, particularly the absence of a firm advance commitment to ongoing work defining casual work. This ensures casual jobs are genuinely casual. The nature of the employment, whether casual or ongoing, will be determined at the outset, as opposed to relying on periodic assessments of the relationship as it develops over time. This will provide much-needed certainty to business, who currently have a significant potential liability hanging over their heads and are being disincentivised to hire new employees.

…

Without this suite of casuals amendments, costly and time-intensive court processes would be needed to determine the appropriate rights and obligations of employees and employers in every individual case, imposing significant burdens. Together, these measures relating to casual employment form a package of reforms to address those issues.

32    The Revised Explanatory Memorandum and Second Reading Speech emphasise that the purpose of adding the definition to the FW Act was, in light of then extant case law which was thought to create uncertainty, to provide greater certainty to employers and employees about who is a “casual employee”. That purpose is consistent with s 15A providing an exclusive definition of the term. As a general proposition, the existence of a residual category of “casual employees” under the FW Act who do not fall within s 15A(1) would be quite inconsistent with the expressed purpose.

33    While a construction of s 15A(1) as providing an exclusive and exhaustive definition may operate to narrow the circumstances in which a person is regarded as a “casual employee”, that is not inconsistent with the provision of greater certainty to employers and employees about who is a “casual employee”.

34    The construction of s 15A(1) of the FW Act we prefer seems consistent with the construction that seems to have been adopted in WorkPac Pty Ltd v Rossato (2021) 392 ALR 39; [2021] HCA 23 by Gageler J at [109]-[110] and perhaps by the plurality at [10].

35    Accordingly, s 15A of the FW Act must be understood as providing an exclusive and exhaustive definition of the term “casual employee” for the FW Act. While we would not exclude the possibility that there may be some use of “casual employee” in the FW Act that evinces a contrary intention, no such use is readily apparent.

36    One further matter should be mentioned. The primary judge made an order declaring that the respondents contravened s 535 of the FW Act by, relevantly, “failing to make employee records in relation to the casual employment of the Applicant”. That order was based upon a finding that the respondents contravened reg 3.33(2) of the FW Regulations which provides that, “If the employee is a casual or irregular part-time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee”. Although the definition of “casual employee” in s 15A applies retrospectively, for the purposes of the FW Act, to employees whose offers of employment were given before commencement of the provision, there is no provision expressly applying that definition retrospectively for the FW Regulations. The respondents have not filed any cross-appeal or otherwise challenged the primary judge’s declaratory order. Their position may be based upon a view that even though s 15A, through its retrospective application, operates to deem some employees to no longer be “casual employees” for the purposes of the FW Act, s 15A does not have the same retrospective application to the meaning of “casual employees” under the FW Regulations. In these circumstances, there is no occasion to address what outwardly appears to be an incongruity between the declaratory order made by the primary judge and our conclusion that the appellant was not, at the time of the primary judgment, a “casual employee” for the purposes of the FW Act.

37    As we have indicated, save as to Grounds 4 and 13(a), we agree with the reasons of McElwaine J.

38    In our opinion, the appropriate orders are:

(1)    The appeal be allowed.

(2)    Orders 2 and 3 of the Federal Circuit Court of Australia of 7 July 2021 be set aside.

(3)    The matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for hearing and determination.

39    The parties have not submitted that any orders as to costs should be made.

Associate:

Dated:    10 May 2022

REASONS FOR JUDGMENT

McELWAINE J:

40    This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) (now the Federal Circuit and Family Court of Australia): Jess v Cooloola Milk Pty Ltd [2021] FCCA 1526 (PJ). In that proceeding, the appellant contended that the first respondent contravened a number of provisions of the Fair Work Act 2009 (Cth) (the FWA) and that its director, the second respondent, was involved in and liable as an accessory to the contravention. By judgment delivered on 7 July 2021, the primary judge declared that the first and second respondents had contravened s 535 of the FWA by failing to make employee records and by failing to make a record of the number of overtime hours worked. The primary judge did not impose pecuniary penalties and otherwise dismissed the proceeding.

BACKGROUND

41    In April 2014, the first respondent required a new truck driver for a prime mover and tanker. An existing driver was about to retire. The appellant, an experienced truck driver, was looking for work. He contacted the second respondent, who is the majority shareholder and managing director of the first respondent, and participated in a short interview.

42    On 2 May 2014, the appellant began a two-week trial period. He drove with the retiring driver during that period and his evidence was that the retiring driver showed him the driving runs and they spoke about how the appellant would be paid.

43    At the conclusion of the trial period, the second respondent told the appellant that he “had the job”. The appellant’s evidence before the primary judge was that he was told, “nothing more”. He maintained the position throughout the trial before the primary judge that his employment had been as a full-time employee. In contrast, the second respondent’s evidence was that when he advised the appellant that he had the job, he had also advised him that his employment was on a casual basis.

44    During his employment, the appellant’s primary responsibilities included the following:

(1)    The “local run” – the appellant would drive to between three and five local farms and transport milk from those dairy farms to the base of operations of the first respondent. The second respondent estimated that this run would take around four hours but no more than five hours to complete: PJ [15]–[20].

(2)    The “Brisbane run” – the appellant would transport milk to a number of distributors, which included the main distributor for Brisbane, and then return to the base of operations. The second respondent estimated that a period of six hours would be more than sufficient for this run: PJ [21]–[27].

(3)    Other duties – the appellant engaged in “truck and dog carting” of gravel and cow manure to and from the farm of the second respondent (noting that this work had nothing to do with the business of the first respondent) as well as various other work either before, after or even instead of his runs. This other work is listed at PJ [30]–[31].

45    On 23 December 2018, a number of important conversations took place. These are relevant to the present appeal and I set them out in some detail from the facts as found by the primary judge and which are not in dispute on this appeal. In short, the appellant telephoned the second respondent to inquire about working over the Christmas period. The parties dispute the content of that conversation, including discussion about the appellant working overtime and on Boxing Day, save that they agreed that the second respondent asked the appellant to complete a manure run after the Brisbane run on 24 December 2018 and to complete three manure runs on 27 December 2018.

46    On Boxing Day, the appellant turned up for work. His evidence was that he had expected to do the Brisbane run but another driver had already taken the truck and left. The appellant felt humiliated and took a sick day. He returned to work on 28 December 2018. The second respondent, however, noted that the appellant had not done the Brisbane run on a Wednesday for at least the past four weeks and could not understand why the appellant had turned up on that day. As had been the standard practice of the second respondent, the appellant was paid for Boxing Day and the following sick day.

47    The dispute as to the content of the conversations in [45] that led to the events in [46] includes a claim by the appellant that when the second respondent asked him to complete manure runs on 24 and 27 December 2018, he said it was “to make [the appellant’s] pay worthwhile”. In response, the appellant told the second respondent that three loads of manure “would take over twelve hours to do”. The appellant claims that he told the second respondent, “I will work if you pay me for the extra hours”. The appellant asserts that the second respondent replied “we don’t pay overtime”, to which the appellant said “by me doing the extra loads you are getting the benefit and I’m getting nothing for the extra hours”. When the appellant asked whether he would be paid for overtime, the appellant said that he was told that he would not be. The appellant further said that the second respondent told him not to do the manure run on 24 December 2018 and to have the rest of the day off, before reminding him that he would be working on Boxing Day. The primary judge did not accept the appellant’s account of those events.

48    The appellant did a Brisbane run on 28 December and again on 31 December. He worked on 2 and 3 January on manure runs.

49    On 4 January 2019, the second respondent informed the appellant that his services were no longer required and that he was being given two weeks’ notice of termination of employment. On 18 January 2019, the appellant finished working for the first respondent.

50    On 16 January 2019, the appellant inquired with the second respondent about payment of entitlements. The second respondent provided a response by email on 18 January 2019.

51    On 20 March 2019, the appellant applied to the FCCA for relief. The trial commenced on 17 February 2020 but was adjourned on a number of occasions for reasons including evidentiary issues and delays caused by the COVID-19 pandemic. On 7 July 2021, the primary judge delivered reasons for judgment.

52    On 4 August 2021, the appellant appealed to this Court and the appeal was heard remotely on 17 February 2022.

THE FCCA DECISION

53    Before the FCCA, the appellant claimed that he was chronically underpaid during the time of his employment; that the respondents had taken adverse action against him; and that the respondents had made false and misleading representations to him about his employment and entitlements. He sought compensation as well as the imposition of pecuniary penalties.

54    Both the appellant and the second respondent gave oral evidence. The primary judge observed there was little agreement between the appellant and the second respondent on the evidence and issues in dispute. His Honour considered his assessment of credit as dispositive of many of those issues. His Honour did not consider the appellant to be a truthful witness. Although his Honour found the second respondent to be a truthful witness, he noted some issues with his reliability characterised as confusion when answering certain questions.

55    The findings of the primary judge relevant to this appeal are as follows:

(1)    A term of the contract of employment was that, as long as the appellant had completed his allotted work, he would be paid for 76 hours each fortnight, regardless of how many hours he actually worked. Payment was for all aspects of employment: PJ [85].

(2)    The second respondent stated that he expressly employed the appellant as a casual employee: PJ [103]–[105]. Notably, the primary judge based this finding on a number of circumstances set out at [102], and not s 15A of the FWA: PJ [89]–[90].

(3)    The proper award for determining the claim made by the appellant was the Road Transport and Distribution Award 2010 (Short Haul Award) (PJ [111]) and the appellant was performing grade 6 classification work for each day of his employment: PJ [115].

(4)    To determine whether the appellant was “better off overall”, the primary judge expressed difficulty in determining the hours that the appellant actually worked: PJ [112]–[121]. He did not accept as accurate the appellant’s work diary of hours worked and it was given very little weight: PJ [122]–[139]. Then, after splitting the appellant’s claim into two parts – (1) his employment from 2 May 2014 to 15 September 2017 (PJ [146]–[152]); and (2) his employment from 16 September 2017 until 18 January 2019 (PJ [153]–[177]) – the primary judge determined that each failed and dismissed the whole claim for underpayment: PJ [152] and [177].

(5)    The primary judge found that what transpired on 23 December 2018 and 4 January 2019 did not amount to adverse action: PJ [192]. He accepted evidence from a non-party witness, Mr Mullins, in full as to the conversation that took place between the appellant and the second respondent on 23 December 2018, including that the second respondent did not tell the appellant that he would be working a Brisbane run on 26 December 2018. The primary judge found there had been no withdrawal of work, the appellant had not been injured in his employment and his position was not altered to his prejudice: PJ [184]–[192].

(6)    Specifically, on the issue of whether the dismissal of the appellant amounted to adverse action, the primary judge concluded that the cessation of casual employment as a matter of law cannot amount to adverse action, and therefore the exclusion pursuant to s 342(3) of the FWA applied: PJ [195]. The primary judge rejected the appellant’s claim that he had exercised a workplace right and determined that the appellant’s statement “I will if you pay me” was not an inquiry or a complaint in relation to his employment, but simply a request that he perform some extra duties: PJ [197]–[199]. The primary judge noted that even if he was wrong and that dismissal from casual employment was in fact adverse action, or that the appellant had established that he had exercised a workplace right, the first respondent had discharged its onus in establishing that the dismissal was not for a prohibited reason: PJ [208].

(7)    On the basis of the finding that the appellant was a casual worker, the primary judge dismissed the claim that the first respondent had breached s 345 of the FWA: PJ [210]–[211].

(8)    The first respondent breached s 535 of the FWA by failing to keep employee records: PJ [217]. While noting that in this case, there was “absolutely no intention on the part of the employer, in any way, to interfere with or diminish the rights and privileges of the employee” (PJ [219]), the primary judge concluded that a declaration must be made because provisions of the FWA had been contravened: PJ [220]. The primary judge also held that the second respondent was liable as an accessory for this contravention: PJ [224].

(9)    The parties each indicated that they wished to make submissions on pecuniary penalties if there was a finding of contravention of the FWA (PJ [226]). However, the primary judge concluded that he did not need the assistance of counsel in making a decision on that issue: PJ [227]. He reasoned that he had taken into account the whole of the matters outlined in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 (Mason v Harrington). The primary judge concluded that, although the Court must express its condemnation in the strongest possible terms, the respondents had been “very generous”, had been put through the expense and frustration of a trial and had spent a huge amount of time, money and energy to mount a defence: PJ [232]–[234]. He determined that this equated to extra-curial punishment and that, having regard to all of the circumstances, he declined to impose any pecuniary penalty: PJ [235].

THE APPEAL

56    By a notice of appeal filed 4 August 2021, the appellant advanced 14 grounds of appeal. Grounds 7 to 12 were not pressed. The remaining grounds are as follows:

1.     The learned judge failed to afford the Appellant procedural fairness by finding that no pecuniary penalties should be awarded against the First and Second Respondents under section 546 of the Fair Work Act 2009 (the Act), in circumstances where the Appellant was not provided with an opportunity to make submissions on pecuniary penalties.

2.     The learned judge erred in finding that terminating the employment of a casual employee is not adverse action within the meaning of section 342 of the Act.

3.     The learned judge erred in finding that the Appellant did not utter words of ‘complaint’ or ‘inquiry’ in relation to his employment, within the meaning of section 341(1)(c) of the Act.

…

4.     The learned judge erred in finding that the First Respondent did not terminate the Appellant’s employment because of or for reasons which included the Complaint or Inquiry by failing to take into account the evidence of the Second Respondent that:

a.     if not for his telephone conversation with the Appellant on 23 December 2018, the Appellant’s employment would not have been terminated;

b.     following the Complaint or Inquiry, the Second Respondent thought to himself that if the Appellant considered he was worth more money he should pursue other employment; and

c.     he was concerned that other employees would ask for more money if they became aware of the Compliant of Inquiry [sic].

5.     In finding that the Appellant was employed by the First Respondent on a casual basis, the learned judge erred by:

a.     misapplying the common law test to be applied in determining whether the Appellant was a casual or full-time employee; or alternatively,

b.     failing to apply section 15A of the Act.

6.     In finding that the Appellant was employed by the First Respondent on a casual basis, the learned judge erred by:

a.     failing to accept, have regard to, or give sufficient weight to the following indicia of full-time employment:

i.     the Appellant had a firm advanced commitment from the First Respondent to continuing and indefinite work;

ii.     the Appellant was paid set wages based on full-time hours;

iii.     the Appellant was not paid casual loading;

iv.     the availability of work for the Appellant was certain and predictable;

v.     the Appellant was paid annual leave, personal leave and given notice upon termination of his employment;

b.     finding that the Appellant could choose whether or not to work;

c.     finding that there was no agreed pattern of work;

d.     finding that the First Respondent offered to employ the Appellant on a casual basis;

e.     taking into account the following irrelevant considerations:

i.     that the Appellant undertook various work duties; and

ii.     clause 12.5(b) of the Road Transport and Distribution Award 2010.

…

13. The learned judge erred by failing to find that the First Respondent contravened:

a.     section 340 of the Act by terminating the Appellant’s employment because of the Complaint or Inquiry;

b.     sections 45 and 117 of the Act by not making a payment to the Appellant of two weeks wages in lieu of notice of termination of his employment;

c.     sections 44 and 90 of the Act by not paying accrued annual leave to the Appellant upon termination of his employment;

d.     section 45 of the Act and clause 29.2 of the Road Transport and Distribution Award 2010 by not paying annual leave loading to the Appellant upon termination of his employment.

14.     The learned judge erred by failing to find that the Second Respondent was involved in and liable as an accessory to the First Respondent’s contraventions of sections 44, 45, 90, 117, 340, and 345 of the Act.

(emphasis omitted.)

57    I deal with each ground of appeal seriatim.

Ground 1: the procedural fairness ground

58    This ground concerns the primary judge’s decision not to impose pecuniary penalties against the respondents under s 546 of the FWA (PJ [227]) notwithstanding his Honour’s finding that the first respondent contravened s 535 of the FWA by failing to keep overtime records and that the second respondent was liable as an accessory to this contravention: PJ [217], [224].

The appellant’s submissions

59    The appellant’s case is that as a general rule procedural fairness requires that parties be given a reasonable opportunity to present their case. However, as explained in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 144-5, per Mason (as his Honour then was), Wilson, Brennan (as his Honour then was), Deane and Dawson JJ and Heiko Constructions v Tyson (2020) 282 FCR 297; [2020] FCAFC 208 (at [169]–[170] per Griffiths J), not every departure entitles an aggrieved party to a new trial. What must be demonstrated is that the denial of procedural fairness has deprived the appellant of the possibility of a successful outcome.

60    The appellant submits that he was entitled to make submissions and lead evidence on the issue of pecuniary penalties. This is because it was well understood, and even acknowledged by the primary judge, that the parties would confine their case at trial to the issue of liability, and that the issue of any pecuniary penalties would be determined at a further hearing. The appellant submits that the primary judge departed from this procedure without warning in determining not to hear submissions on this issue. As such, had the appellant been afforded the opportunity to make submissions, the primary judge would have imposed penalties against the respondents and awarded those amounts to him. The appellant advances two submissions in support of this proposition:

(1)    The primary judgment discloses only a very limited analysis of the relevant principles. While the primary judge referred to a list of considerations outlined in Mason v Harrington, and stated that he had regard to that list, a formulation of this kind can be no substitute for an adequate pathway of reasoning. The primary judge gave reasons in relation to only two considerations – deterrence and corrective action. The appellant’s submission is that, at a minimum, the primary judge ought to have been directed to authorities which emphasise that record keeping contraventions are serious, and there is a need to impose a meaningful monetary sanction to promote general deterrence.

(2)    Pecuniary penalties, once ordered, are usually made payable to successful appellants: Gibbs v Mayor, Councillors and Citizens of City of Altona [1992] FCA 553; (1992) 37 FCR 216 (at 223 per Gray J); Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia (No 2) (2001) 110 IR 372; [2001] FCA 672 (at [8] per Merkel J).

The respondents’ submissions

61    The respondents accept that the primary judge indicated that the parties wanted to be heard on penalty. However, they submit that the foundation of the appellant’s case does not warrant the matter of penalty being remitted for determination. The respondents highlight that the primary judge made clear the law and the relevant factual considerations that he took into account in reaching his decision; that the findings in relation to penalty were open to the primary judge on the case as advanced by the parties and should not be disturbed on appeal; and the appellant has not demonstrated that there would be a possibility of a different outcome if the proceeding was remitted.

Consideration

62    In my view, the appellant must succeed on this ground. The parties agreed to split the hearing and first proceed to trial as to liability “on the understanding that pecuniary penalties would be determined at a further hearing”. That agreed position was acknowledged by the primary judge (at PJ [226]):

I note that both the Applicant and the Respondents said that they wished to make submissions on pecuniary penalties if it were that I was to make a declaration that there had been a contravention of the FW Act.

63    Unilaterally, and without notice, the primary judge departed from that course and materially failed to afford procedural fairness to the appellant. I accept that not every departure from an agreed procedure amounts to a failure to afford procedural fairness (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (at [34] per Gleeson CJ)). However, counsel for the respondents was correct to concede in oral argument that, by proceeding in the way that he did, the primary judge deprived the appellant of any opportunity to put submissions to the effect that the respondents had engaged in a deliberate and calculated decision not to keep employment records: T54:1–25. This was a factor plainly relevant to the imposition of pecuniary penalties. It was a matter touched upon by the primary judge in his reasons at [230] but which was then subsumed by, and conflated with, the general finding at [233] that the respondents had been “put through the expense and frustration of a trial that would have been avoided if the Respondents had complied with the Award”. In the circumstances of this case, it is evident that there was a material failure to afford procedural fairness, being the obligation of the primary judge to adhere to the agreed procedure before determining not to impose any pecuniary penalty upon the respondents.

64    By proceeding in the way that he did, the primary judge deprived the appellant of the opportunity that ought reasonably to have been afforded to him to put submissions: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 (at [61] per Gageler and Gordon JJ). The primary judge ought to have adhered to the common position of the parties as to how the issue of pecuniary penalties would be dealt with, if at all, following determination of the liability issues: Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40; [2018] FCAFC 203 at [101]–[108] per Allsop CJ, Collier and Rangiah JJ.

65    For these reasons, I would uphold the procedural fairness ground of the appeal, ground 1.

Ground 2: the adverse action ground

66    Section 342 of the FWA is concerned with when a person takes adverse action. It includes, as item 1 in subsection 1 of s 342(1), the dismissal of an employee by an employer. Subsection (3) of s 342 provides:

342    Meaning of adverse action

…

(3)    Adverse action does not include action that is authorised by or under:

(a)     this Act or any other law of the Commonwealth; or

(b)     a law of a State or Territory prescribed by the regulations.

67    The primary judge, in very brief reasoning, observed (at [195]):

Under casual employment arrangements, there is an ability for an employer or an employee to simply end the employment arrangement whenever either wishes to do so. In this respect, cessation of casual employment is not adverse action. Accordingly, I agree with the submissions of the Respondents that the exclusion given pursuant to s 342(3) of the FW Act fits these circumstances.

68    The primary judge did not otherwise expose his reasoning process.

69    The respondents, in their written case upon this appeal, concede that the primary judge erred in his interpretation of the FWA. That concession was rightly made. There is nothing in the text, context or purpose of the provision that supports the interpretation of the primary judge.

70    As Flick J observed in Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560; [2014] FCA 462, there is a need to approach the interpretation of the exemption “with some degree of caution” for the reason that the primary provision operates to protect employees from various categories of adverse action: at [46]. I agree, although in the circumstances of this case, it is plainly not necessary to adopt a cautious approach. The text of s 342 of the FWA is plain – it applies to the dismissal of employees without limitation as to the character of the employment as permanent, fixed term or casual. This is confirmed by the definition of “dismissed” at ss 12 and 386 of the FWA by which a person is dismissed if their employment is terminated “on the employer’s initiative”. There is simply no basis for the interpretation adopted by the primary judge.

71    For these reasons, I would uphold ground 2 of the appeal.

Ground 3: the complaint or inquiry ground

72    Section 341(1) of the FWA provides that:

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

(emphasis omitted.)

73    Despite the conclusion of the primary judge that “… the exclusion given pursuant to s 342(3)” of the FWA applied, his Honour reasoned in the alternative on the assumption that he may be in error. At [197], his Honour summarised the appellant’s contentions that he made an inquiry as to whether he would receive payment at overtime rates for additional hours on 24 and 27 December 2018 and his complaint that his employer did not pay overtime rates for overtime work: see above at [45]–[47]. At [198], his Honour concluded that the appellant had failed to prove his pleaded case. He found that the appellant’s response to the request to do additional work (“I will if you pay me”) could not be characterised as “the exercise of a workplace right”: [198]–[199]. At [199], his Honour reasoned, “it is not an enquiry [sic] or a complaint in relation to his employment. It is simply his reply to a request that he perform some extra duties”.

74    Although divergent views have been expressed in this Court as to the correct meaning of the phrase “is able to make a complaint or inquiry” in relation to employment under s 341(1)(c)(ii) of the FWA (see Alam v National Australia Bank Limited (2021) 393 ALR 629; [2021] FCAFC 178 at [65] per White, O’Callaghan and Colvin JJ (Alam)), I cannot accept the reasoning of the primary judge as correct. His Honour made no attempt to examine the numerous authorities in this Court, both single judge and of the Full Court, as to the meaning of the statutory text. The appellant plainly inquired of his employer as to whether he would receive additional payment for undertaking the requested additional work. Objectively and reasonably understood, it was an inquiry in relation to the payment of overtime. Overtime payments were entitlements of the appellant, even if only a casual employee, pursuant to cl 27 of the Short Haul Award.

75    Within the meaning of s 341(1)(c)(ii) of the FWA, an inquiry includes a request for information or the posing of a question by an employee in relation to his or her employment: PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225; [2020] FCAFC 15 at [136]–[138] per Snaden J (PIA). In Alam, this Court undertook a comprehensive analysis of the competing views as to the proper construction of the phrase “is able to make a complaint or inquiry” within the meaning of the provision. This Court concluded (at [97]) that the unanimous decision in Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46; [2019] FCAFC 16 at [28] (Whelan) is to be followed, despite apparent differences with the reasoning of the majority (Rangiah and Charlesworth JJ) in PIA at [13], [18]–[20] and [26].

76    In Whelan, the employee was summarily dismissed after repeatedly inquiring about the payment of a bonus or the establishment of a bonus plan as provided for in the contract of employment. This Court reasoned (at [28] per Greenwood, Logan and Derrington JJ) that as the contract “at the very least contemplated” the payment of a discretionary bonus, Mr Whelan “was entitled to make complaint or inquiry on these subjects”. In doing so, the Court endorsed as “unremarkable and correct” the reasoning of the primary judge to the effect that a complaint or inquiry in relation to employment is “not at large” but “must be founded on a source of entitlement, whether instrumental or otherwise”.

77    In PIA, the majority reasoned (at [13]) that “the complaint must be underpinned by an entitlement or right to make a complaint” and that the phrase “is able to” in each subsection “indicates an entitlement or right to initiate, or participate in, a relevant process or proceeding.” However, as observed in Alam (at [81]), the majority in PIA “went on to give a seemingly expansive view of the nature of the right or entitlement which may form the basis of a workplace right to make a complaint or inquiry”.

78    Ultimately, the difference in approach “may not be significant” because as the Court said in Alam at [81]:

Rangiah and Charlesworth JJ considered that this construction of s 341(1)(c)(ii) was consistent with the judgment of the Full Court in Whelan. There is, however, a difference. Whereas Whelan had not required that the right or entitlement to make a complaint or inquiry itself have an instrumental source, that is the construction preferred by Rangiah and Charlesworth JJ in PIA Mortgage, although, as noted, their Honours adopted an expansive view of the circumstances in which that right or entitlement may be found. Their Honour’s view, in effect, is that if an employee has a right or entitlement derived from legislation, an instrument or a contract of entitlement, the employee has the right or entitlement required by Shea v TRUenergy to make a complaint or inquiry about it. The difference in practice of the application of the two approaches may not be significant.

79    In this case, the Short Haul Award made provision for the payment of overtime hours worked at overtime rates. That instrumental entitlement underpinned the inquiry that the appellant made of the second respondent when, on 23 December 2018, he advised that he would undertake the extra work stating “I will if you pay me”. It was a request made by an employee to his employer whereby he sought information to confirm that the employer would pay the overtime entitlement.

80    For these reasons, I would uphold ground 3.

Ground 4: reason for the termination of employment

81    Similarly to the previous ground, the primary judge reasoned in the alternative and upon the hypothetical assumption “if I were wrong” in his conclusion that the appellant did not make a complaint or inquiry. He proceeded to consider whether the employment of the appellant had been terminated because he had a workplace right within the meaning of s 340 of the FWA. That section relevantly provides:

340    Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)     has a workplace right; or

(ii)     has, or has not, exercised a workplace right; or

(iii)     proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

82    The effect of s 361 of the FWA is to impose a reverse onus – if an applicant alleges that a person took, or is taking, action for a particular reason or with a particular intent, and the taking of that action for that reason and with that intent would constitute a contravention of Part 3-1, then “it is presumed that the action was, or is being, taken for that reason or with that intent unless the person proves otherwise”.

83    As observed in Alam (at [14]), the application and meaning of these provisions is settled in many respects. I do not find it necessary to examine those principles in detail to resolve this appeal ground. The primary judge correctly understood that he was required to determine a question of fact in the light of all of the circumstances and with the benefit of direct evidence from the second respondent, citing Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 (at [45]) (Bendigo).

84    The primary judge made the following factual findings (at [203]–[207]):

203    The evidence of the Second Respondent must be scrutinised. The Second Respondent said that he thought that the Applicant was disrespectful during the conversation of 23 December 2018. The Second Respondent said that respect between employer and employee is essential. It was put to the Second Respondent that he was concerned that the Applicant would keep asking him about pay, and so that was the reason that he dismissed the Applicant. The Second Respondent denied this.

204     The Second Respondent said, in evidence before me, that there was no work left for the Applicant. He said that a driver needed to be young and fit to do the milk run and that the Applicant did not fit that bill anymore. He said that his plan was to use the Applicant to do farm work. He said that he was looking for efficiencies, and he told the Applicant that he was terminating the employment because of a lack of efficiency.

205     The Second Respondent said that he had been considering the efficiency of his business for some time. He said that the Applicant was not doing the same number of runs and rarely did the milk collection by January 2019. The Second Respondent became more reliant upon a contractor to be delivering manure.

206     The Second Respondent conceded that he had written in the “separation certificate” that the reason for the cessation of employment was “unfortunately position became annulled due to company restructure”. The Second Respondent said that he believed that this reason and “efficiencies” meant the same thing.

207     The Second Respondent said that the matters about pay did not cross his mind when he decided to dismiss the Applicant.

85    At [208], the primary judge accepted as truthful that evidence of the second respondent. Upon this appeal, counsel for the appellant acknowledged that this ground of appeal can only succeed if the Court is satisfied that these findings of the primary judge are demonstrated to be wrong by “incontrovertible facts” or “uncontested testimony” or are “glaringly improbable” or “contrary to compelling inferences”: Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550; [2016] HCA 22 (at [43] per French CJ, Bell, Keane, Nettle and Gordon JJ); Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55] per Bell, Gageler, Nettle and Edelman JJ; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (at [62] per Nettle J).

86    Given the adverse credibility findings that the primary judge made of the appellant, which are not challenged upon this appeal, counsel for the appellant framed his submissions by reference only to the evidence of the second respondent that was accepted by the primary judge. In particular, the Court was taken to the following evidence by the second respondent in cross-examination as comprising the “high point” of this aspect of the appeal (T54:14–30 of the FCCA trial):

Did you raise your concerns with Greg about his – excuse me. Did you raise the concerns you had about Greg’s efficiency with Greg?---Not really, because it was – he knew what he had to do, and it was getting less and less, and taking longer and longer.

At the - - -?---And as I said before, I’ve been employing people since 1983 and doing various jobs, and once that rot sets in and you start getting this sort of thing happening, it spreads through the company and every – and a lot of others are ..... so you’ve got to bite the bullet.

When you say spread through the company, what are you referring to? ---Well, if other people see him getting big dollars for doing nothing much, then they want the same sort of deal.

If other workers hear that he’s asking for more money, they may do the same? ---Yes. And I might add that they’re all getting over and above what they’re supposed to be being paid, too.

87    However, that evidence should not be taken out of context. The second respondent was asked questions and gave answers about the efficiency of the work that the appellant had performed. What is apparent from this evidence is that the second respondent was concerned about the amount of time that it was taking the appellant to perform his contractual duties.

88    There is other evidence that the appellant relies on, summarised at [23] of the outline of submissions as follows:

a.    In response to the Complaint the Second Respondent withdrew the offer to undertake manure runs and said “don’t worry about it then” [188].

b.    The Second Respondent felt the Complaint was disrespectful and uncalled for (T51.35-45).

c.    The Second Respondent considered the Appellant was being remunerated fairly and understood the Complaint as a request for more money (T51.45).

d.    The Second Respondent wasn’t prepared to pay the Appellant for extra hours (T49.15).

e.    After the Conversation, the Second Respondent had a think about the Appellant’s “efficiency” (T51.15). The Second Respondent then probably undertook a “review” in early January 2019 (T52.20).

f.    When asked if the Dismissal would have occurred if not for the Conversation, the Second Respondent conceded “probably not” (T53.10).

g.    Following the Complaint, the Second Respondent thought that if the Appellant considered he was worth more money he should work elsewhere (T50.35-40).

h.    The Second Respondent describes the Complaint as evidence of “rot” setting in which required that he “bite the bullet” to avoid rot spreading through the company (T55.20-30).

i.    The Second Respondent explained that by “spreads through the company” he was concerned that if other employees were to hear of the Appellant asking for more money, they might do the same (T55.20-30).

89    The primary judge gave no consideration to (e) to (i), despite submissions that were put to him at the trial. I have reviewed all of this evidence in context. As to (a), the evidence of the second respondent at T49:1 to T50:11 was:

Greg said he will do those shifts, “if you pay me for them”?---No, he didn’t say that. He said, “I will if you pay,” that’s correct. Yes, “I will if you pay me.”

“I will if you pay me.”?---“I will if you pay me.” There.

All right. And what he was saying there was, “I will do this extra work if you pay me for the extra hours.”?---Yes.

And you – sorry, just so it doesn’t – won’t pick up on the transcript, are you saying yes?---He said – no, he just said, “I will do it if you pay me.” And that was it and I said, “Look, don’t worry about it.”

Yes. What I’m putting to you is that he’s asking you or he’s telling you, rather, “I will do this extra work if you pay me for the extra hours.”?---Yes, well, I wasn’t prepared to because he kept getting good money all the way through, so if you average it out, what he was being paid to do and what he was doing previously, he was well and truly in front.

And you also said, “And don’t worry about the extra hours, the extra shifts, then, Greg.”?---“No, don’t worry about. Yes, I will find someone else.” Because I needed cow manure and what I done was got a contractor in and he brought down – he brought it down in 40 tonne loads.

You didn’t want to pay him for the extra hours because you were already paying him well?---Yes. What was he getting, 30, 34, 33 or thirty-something dollars an hour.

That’s – well, we will get to that. Let’s not worry about that for the moment. There was a gentleman, Mr Mullan, who was there with you at the time you were having the conversation?---That’s correct.

Did you have Greg on the speakerphone, did you?---I always have on speakerphone. I can’t hear him otherwise. If anyone rings me up on the mobile, it will be on speakerphone.

Greg also said during that conversation, he referred to the extra hours that you were asking him to do as overtime, didn’t he?---No, never mentioned it.

And you said to him, “We don’t pay overtime.”?---No.

Greg said:

I’ve been doing all this extra load. You’re getting the benefit and I’m getting nothing for the extra hours.

That’s what he said to you?---No. That’s probably what he thought, but he never said it. If there was a discrepancy like that, I would have negotiated with him, or seen him about it if he wanted extra money, but there was never anything said. All he said was, “I would if you pay me”. And I said, “Don’t worry about it”. But if he had come to me and said he wanted extra money or he had these extra hours – like he did once before he starting working for me first, he was doing what Darryl done. And he was doing a bit more. And he came to me. And he said, you know, “I was worth more money”. And I agreed, “Yes you are”. It does worth more money. We did not decide on a date, or on a figure there and then. I said I would look at it. Now, I wouldn’t let anything like that go unanswered. I would have come to an agreement. Now, whether it was before or after the first pay, I’m not 100 per cent sure. But I would have a – broached the subject with him and made sure that everything was okay with the increased pay ..... respect between employers and employees is absolutely essential and must be maintained.

90    That evidence must be read with other evidence of the second respondent commencing at T51:45 to T52:22 which was:

You were paying him fairly, but he was still asking for more?---Yes.

Okay. And that’s why you dismissed him?---No. Not necessarily, because we just really had no work for him. See, you’ve got to understand, delivering milk with crates and that, you’ve got to be fairly fit. I can’t do it, and I don’t think Greg would be able to do it. So there wasn’t a job there for him – well, for that, pardon me. I – I – and Coby was a young bloke coming along. He done the job for me, and then he got his truck licence and he kept the truck licence, later got his heavy rigid, so he done the other one. And what I was going to do down the track was we had the Murgon farm. I was going to use Greg in a farming capacity. I mean, that’s – that’s his forte. I’ve spoken to him many times on different aspects of spraying and cultivation and stuff. I used to see him in the office when he would come through. I want to get the timeline of this correct, sir. So you had the conversation with Greg on 23 December, then there’s Christmas on the 25th. Greg turns up to work on Boxing Day, which is the 26th. So far so good?---Apparently so. Yes.

Yes. And then during this period since the phone call, you reviewed the efficiency of the business?---I wasn’t over Christmas. We don’t do any – we don’t do any changes over Christmas because half the places are shut down.

Was it early January?---Probably could have been. I’m not 100 per cent sure.

And then after this review on 4 January, you terminate Greg’s employment?---Yes. I told him there was no further – unfortunately, there was no further work for him.

91    When read in context, the effect of the second respondent’s evidence is that he assessed that it would be more efficient for his business if a contractor was engaged to undertake the extra work rather than for the appellant to do it at overtime rates; that the appellant was assessed as insufficiently fit for demanding physical work; and that in consequence there was no further work available for him.

92    As to (b) and (c), the evidence of the second respondent at T51:30 to 40 was:

You - - -?---I’ve always had respect for Greg before then. And I expected the same in return back.

Before the phone conversation?---Yes. I did not – I’ve never spoken to an employee like that, and I won’t have anybody talking to me like that.

He was disrespectful?---I felt it was disrespectful and uncalled for. If he had come to me and said, “Well, this is what’s happening” in a – in a civilised manner and said, “Well, this is what we’ve got to do,” I would have discussed it, but I – I probably still wouldn’t have agreed with it because I would have pointed out what he was being paid and what he was doing.

93    That evidence does not support the contention that the reason for termination was the inquiry made by the appellant for an overtime payment if he worked additional hours on 24 and 27 December 2018.

94    As to (d), I have set out at [89] the questions asked of and answers given by the second respondent. All that this evidence establishes is that the second respondent considered the appellant to be more than adequately remunerated: it is not evidence that the request for additional remuneration was a reason for the subsequent termination.

95    I have addressed contention (e) above.

96    As to (f), the complete exchange in the cross-examination of the second respondent at T53:7-36 was:

What I put to you, and I will ask the question again, is if it hadn’t have been for the phone conversation on 23 December when Greg asked to be paid for these extra hours, you wouldn’t have dismissed him?---Well - - -

Well, that’s right, isn’t it?---Probably – probably not. Why he was dismissed allegedly was I organised it so that we had less employees for the efficiencies of delivering the milk, so we cut out the Friday delivery and the truck done – that Coby was driving done the Caloundra, the southern end of the Sunshine Coast plus Narangba.

Well, you say in your affidavit that – to be fair to you, I will read it exactly as it’s written:

The sole factor that I took into consideration when deciding to dismiss Gregory was his lack of efficiency.

That’s what you’ve put in your affidavit. Is that correct?---Yes. That would be correct.

That was the only reason?---Yes. I thought he might have got over his – whatever was ailing him, and if I give him work in a factory – give him work at Murgon, and all the rest of the farming might come out – if I give him enough time, try and come out of whatever was ailing him. But after that, I didn’t.

And what do you mean by efficiency is, you’re referring to him asking for more money for the additional hours of work. That’s not efficient - - -?---No. No.

- - - is that what you mean?---That’s – that’s – the efficiency was delivering the goods.

97    This evidence demonstrates that the second respondent disagreed with the proposition put by counsel and provided an explanation for the termination of employment that was directly inconsistent with the appellant’s adverse action case.

98    As to (g), the submission that the second respondent subjectively considered that “if the appellant considered he was worth more money he should work elsewhere” rests upon a selective reading of the evidence at T50:36–T51:9 which was:

Well, he didn’t because he was dismissed, but I’m putting to you, you were concerned that he would keep asking to be paid - - -?---No. Well, I was trying at the - - -

- - - for extra hours?---No. I wasn’t concerned, I was trying to – at the time, we had the farm at Murgon. And I was trying to work in a system where he could still be working there. But when he came and – and said that, I thought, well, I’ve got to get more feedlot manure in anyway, so I said, “Okay”. I thought to myself, well, if you’re worth more money, well, go and get it.

Right. So it was that – that got you thinking about getting rid of him, when he made that comment for being paid for the extra hours?---Well, I had run out of work because what I had to do was organise the runs so they were running more efficiently. So what I did was the milk that went to the ice creamery I put on the fridge truck that went to get down the bottles – that was me. And what went to Nathan because ..... was on the truck that went to Caloundra. Done the Caloundra run. So he only went from Caloundra to Narangba, instead of from Gympie to Narangba. So – and that was capable of doing it, so that cut that run out. And then I had to go up – I went to Brisbane to get the bottles and they used to go down to Gold Coast to – to get the bottles. And I would take the milk to ice cream. So we did that to do away with extra run.

99    That evidence does not support the submission: on the contrary, the second respondent was concerned to conduct the business efficiently in consequence of a decline in work.

100    I have addressed (h) and (i) above.

101    Contrary to the appellant’s submissions challenging the findings of the primary judge at [203]–[207], I do not regard any of this as compelling evidence (alone or in combination) which establishes that the reason for the termination of employment of the appellant was, or included, that he had made the inquiry in relation to his employment.

102    In my view, it was open to the primary judge to accept the direct evidence given by the second respondent as the “substantial and operative” reason for the termination of the employment of the appellant: Bendigo at [104]; Alam at [14] (c), (d) and (g). Within the limits of appellate restraint, that conclusion is not glaringly improbable or contrary to incontrovertible facts or compelling inferences.

103    For these reasons, I would dismiss ground 4.

Grounds 5 and 6: employment status grounds

104    Grounds 5 and 6 contend that the primary judge erred in concluding that the appellant was a casual employee. These grounds are complicated by the manner in which the trial proceeded before the primary judge. The appellant filed his application on 24 June 2019 and the trial commenced on 17 February 2020. As explained by the primary judge, there were several adjournments, some caused by the impact of restrictions that were necessary in response to the COVID-19 pandemic. Ultimately, the trial resumed on 10 May 2021, final submissions were provided by the parties on 14 June 2021 and the primary judge published his reasons on 7 July 2021.

105    For the entirety of this period, the decisions of this Court in WorkPac Pty Ltd v Skene (2018) 264 FCR 536; [2018] FCAFC 131 (Skene) and WorkPac Pty Ltd v Rossato (2020) 278 FCR 179; [2020] FCAFC 84 (Rossato (FC)), amongst others, determined that the correct approach to the question of whether a person is a casual employee within the meaning of ss 86, 95 and 106 of the FWA required an objective analysis of the entirety of the relationship between the employer and the employee. That included analysing the course of dealing between the parties, and was not limited to the written terms of the contract of employment, to determine whether in substance the employee lacked a “firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work”: Skene (at [172] per Tracey, Bromberg and Rangiah JJ). In the view of this Court in Skene (at [173]):

The indicia of casual employment referred to in the authorities — irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability — are the usual manifestations of an absence of a firm advance commitment of the kind just discussed. An irregular pattern of work may not always be apparent but will not necessarily mean that the underlying cause of the usual features of casual employment, what Hamzy identified as the “essence of casualness”, will be absent.

106    In Rossato (FC), this Court endorsed that approach and rejected the submissions put to it by WorkPac Pty Ltd to the effect that the question of a firm advance commitment in the case of a written contract was to be determined by reference only to its terms. The Court preferred to approach the question by an analysis of “the real substance, practical reality and true nature of the relationship”: at [622]–[630] per White J.

107    The High Court granted special leave to appeal Rossato (FC) on 26 November 2020. For reasons published on 4 August 2021, the High Court allowed the appeal, set aside the orders made by this Court, declared that Mr Rossato was at all material times a casual employee for the purposes of ss 86, 95 and 106 of the FWA and overruled the decision in Skene: WorkPac Pty Ltd v Rossato (2021) 392 ALR 39; [2021] HCA 23 (Rossato (HC)).

108    In Rossato (HC), each party accepted that the expression “casual employee” in the FWA “refers to an employee who has no firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work” (at [32] per Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ). That formulation was adopted from Skene (at [153]) and Hamzy v Tricon International Restaurants (2001) 115 FCR 78; [2001] FCA 1589 (at [38] per Wilcox, Marshall and Katz JJ). Expressly, their Honours (at [66]–[67]) rejected the approach of this Court in Skene as erroneous:

[66]     In light of this discussion, it should now be understood that in approaching the characterisation exercise by reference to “[t]he conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship”, the Full Court in Skene strayed from the orthodox path.

[67]     None of the authorities cited by the Full Court in Skene in support of its approach to the characterisation exercise were cases where the parties had committed the terms of the employment relationship to a written contract and thereafter adhered to those terms. In such a case, it is to those terms that one must look to determine the character of the employment relationship. WorkPac’s submission that Skene was wrongly decided in this respect should be accepted.

(citations omitted.)

109    It is important to understand that Mr Rossato signed a written contract of employment pursuant to which he expressly acknowledged that he had read, understood and agreed to be bound by a further document, which expressed the general conditions of his employment in comprehensive detail. Although he submitted in the High Court that certain terms in his contract were ambiguous, which justified reference to the manner in which the parties performed the contract, that submission was not pressed by reference to any identified ambiguity, nor was it submitted on his behalf that the written contract was a sham, should not be given effect according to its terms or that the contract was partly written, partly oral and/or partly to be implied: Rossato (HC) (at [54]–[55]). Later in these reasons, I return to these considerations, noting that in this case the contract of employment was oral and somewhat vague.

110    There is a further complication. The FWA was amended with effect from 27 March 2021 by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Amendment Act) which, relevantly for present purposes, inserted s 15A to provide:

15A    Meaning of casual employee

(1)    A person is a casual employee of an employer if:

(a)    an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

(b)    the person accepts the offer on that basis; and

(c)    the person is an employee as a result of that acceptance.

(2)    For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

(a)    whether the employer can elect to offer work and whether the person can elect to accept or reject work;

(b)    whether the person will work as required according to the needs of the employer;

(c)    whether the employment is described as casual employment;

(d)    whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Note:     Under Division 4A of Part 2‑2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full‑time employment or part‑time employment.

(3)    To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

(4)    To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.

(5)    A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

(a)    the employee’s employment is converted to full‑time or part‑time employment under Division 4A of Part 2‑2; or

(b)    the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.

111    Additionally, the Amendment Act, as explained by the High Court in Rossato (HC) (at [10]) and with certain exceptions, applies retrospectively by operation of clause 46 of schedule 1 to the FWA:

46    Application of certain amendments

(1)    Section 15A of the amended Act applies on and after commencement in relation to offers of employment that were given before, on or after commencement.

(2)    Subclause (1) does not apply in relation to a person who is an employee of an employer as a result of accepting an offer that was made before commencement if either of the following apply in relation to that person:

(a)    a court made a binding decision before commencement that the person is not a casual employee of the employer;

(b)    the person converted the employment before commencement to employment other than casual employment under a term of a fair work instrument or contract of employment.

(3)    In addition to subclause (1), section 15A of the amended Act (and the amendment made by item 1 of Schedule 1 to the amending Act) also applies before commencement in relation to offers of employment that were given before commencement, unless either of the following apply in relation to a person who is or was an employee of an employer as a result of accepting the offer:

(a)    a court made a binding decision before commencement that the person is not a casual employee of the employer;

(b)    the person converted the employment before commencement to employment other than casual employment under a term of a fair work instrument or contract of employment.

(4)    To avoid doubt, if, apart from subclause (3), an employee could have made a claim for accrued relevant entitlements (within the meaning of subsection 545A(4) of the amended Act), the effect of that subclause is that the employee has not accrued, and cannot make a claim for, those entitlements.

(5)    Subject to clause 47, Division 4A of Part 2‑2 of the amended Act applies in relation to periods of employment starting before, on or after commencement.

(6)    Section 545A of the amended Act applies in relation to entitlements that accrue, and loading amounts paid, on or after commencement.

(7)    In addition to subclause (6), section 545A of the amended Act also applies in relation to entitlements that accrue, and loading amounts paid, before commencement.

(8)    To avoid doubt, section 545A of the amended Act applies:

(a)    to periods of employment starting before, on or after commencement (regardless of whether the employment period ended before commencement); and

(b)    regardless of whether a person is, or is not, an employee of the relevant employer at the time a claim to which that section relates is made.

(9)    A reference to periods of employment as a casual employee in section 87, 96, 117, 119 or 121 of the amended Act applies to periods of employment starting before, on or after commencement.

(10)    A reference to a regular casual employee in section 23, 65, 67 or 384 of the amended Act applies to periods of employment starting before, on or after commencement.

(11)    To avoid doubt, nothing in subclause (1) is taken to change the time at which the person became an employee of the employer.

112    The primary judge (at [88]–[90]) reasoned that s 15A did not apply retrospectively to the proceeding before him. On this appeal, counsel for the respondents conceded that the provision does apply. In my view, that concession was rightly made.

113    As explained by Kitto J in Continental Liqueurs Proprietary Limited v G F Heublein and Bro Incorporated [1960] HCA 37; (1960) 103 CLR 422 (at 427), the general position at common law is that “when the law is altered during the pendency of an action the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights”. As more recently explained by Kiefel CJ, Bell, Keane, Nettle and Edelman JJ in Minogue v State of Victoria (2018) 264 CLR 252; [2018] HCA 27 (at [24]), the phrase “to avoid doubt” usually manifests Parliament’s intent to retrospectively displace rights in a pending proceeding. Gageler J separately reasoned to the same effect at [93].

114    Although subclause (1) of clause 46 of schedule 1 focuses upon offers of employment “that were given before, on or after commencement”, I do not construe the provision as limited to offers of employment and not to contracts entered into as the result of acceptance of an offer on or after the commencement date. Why that is so is evident from subclause (2), which is concerned with contracts that result from acceptance of an offer made before the commencement date, but only where subparagraphs (a) or (b) apply. This case does not meet either criteria. Moreover, in my opinion, subclause (4) operates to remove any further doubt that may linger in that it expressly disentitles an employee from his or her ability to make a claim for accrued entitlements pursuant to s 545A(4) of the FWA, which applies to certain types of entitlements under contracts that are described as casual employment.

115    Further, s 15A is the determinative provision for casual employment within the meaning of the FWA. As explained by the plurality in Rossato (HC) at [10]:

Before moving to a discussion of matters germane to the present appeal, it may be noted that the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth), which came into effect after the filing of this appeal but before the appeal was heard, inserted a definition of “casual employee” into the Act.  It also provided that an award of compensation for permanent employee entitlements payable to an employee mistakenly treated as a casual must be reduced by the amount of any identifiable casual loading paid to the employee.  These amendments do not apply to employees like Mr Rossato in respect of whom a court has made a binding decision before commencement that the employee is not a casual employee.  However, the amendments apply retrospectively to other employees, subject only to limited exceptions.  The amendments had the stated intention of introducing a statutory definition of casual employment that “incorporates key aspects of the common law as expressed in … Skene and Rossato”, as well as “a statutory offset mechanism so that employers will not have to pay twice for the same entitlements”.  Workpac did not seek to argue that the amendments provided any support for its arguments in relation to the proper construction of the term “casual employee” in the Act.

(citations omitted; emphasis added.)

116    The citation provided by the High Court for the quoted “stated intention” in [10] is the Second Reading speech. The Court in the same footnote also makes a ‘see also’ reference to the Explanatory Memorandum, which states relevantly, “Item 2 inserts new section 15A, which establishes the statutory definition. This would override the meaning of casual employee that has evolved over time at common law.” Gageler J reasoned separately to the same effect at [109]–[111] and characterised the statutory definition as operating “comprehensively for the future”.

117    For these reasons, I conclude that the primary judge erred in not applying s 15A of the FWA. Although the primary judge at least understood “on my reading of the authorities, a casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Conversely, a casual employee does not give any such reciprocal commitment to the employer either”: [91], he applied that reasoning to the large number of factors that he listed at [102] and which strayed well beyond the only matters that may be permissibly considered pursuant to s 15A. It follows that his ultimate conclusion that the appellant was engaged as a casual employee is infected by erroneous reasoning and I must now resolve that issue.

118    The parties did not frame their competing contentions at the trial by reference to s 15A, but did so in their submissions to this Court. That leads to difficulty. Section 15A requires that close attention be focused upon, first, the terms of the offer that is made by an employer; second, whether that offer is accepted; and third, whether the employer “makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work”. In resolving the third issue, regard must only be had to the four considerations at s 15A(2). No attention was paid in the pleaded cases or in the evidence as to these matters. Indeed, just what offer was made, when, upon what terms and how it was accepted are details that remain opaque.

119    The appellant, in his amended statement of claim, did not grapple with the basal contract terms. Rather, he pleaded that, with effect from 4 January 2019, the first respondent through the actions and conduct of the second respondent “asserted” that the employment was casual and then made multiple claims asserting various failures by the employer to make payments in accordance with the entitlements of a casual employee pursuant to either of the awards relied upon. The first respondent, in its defence at paragraph 7.5, and without elaboration, pleaded that:

the Applicant entered into an oral agreement that he be employed as a casual employee which included among other terms that he be paid an hourly rate based on 38 hours per week inclusive of a casual loading and to cover off any entitlements that may otherwise be payable to him under the Short Haul Award …

120    The appellant, in his amended reply, simply responded to this contention as “untrue” at paragraph 7(i).

121    The appellant, in his affidavit made on 9 October 2019, set out the following relevant evidence at paragraphs [3]–[8]:

3.    In about late April 2014 or early May 2014 I was looking for work and heard that the First Respondent (“Cooloola Milk”) had a truck driving job available.

4.    I called the main office of the First Respondent and got no answer. I knew that the Second Respondent (“Dick”) was the owner of Cooloola Milk so I went to his house to see him. I asked Dick about the job. He told me he was after a driver for a prime mover and tanker. He gave me rundown on what I would be doing and the type of trucks I would be driving. I gave him my resume and we had a general chit chat about farming. Dick asked me to do a two week trial with the driver who was leaving. And I agreed.

5.    I began working for Cooloola Milk on 2 May 2014.

6.    During the initial trial period, I drove with Darryl, who was retiring. I was never told to fill in a timesheet and I noticed that Darryl didn’t do one either. In all my time with Cooloola Milk I never once completed a timesheet or report my daily hours of work in order to get paid.

7.    During the trial, Darryl showed me the driving runs and told me that:

a. we got paid fortnightly;

b. it was the same wage each week; and

c. that we were paid when we were sick and when we took holidays.

8.    At the end of the fortnight trial, Dick told me that I had the job and that was that. Dick did not give me an employment contract.

122    In his affidavit made on 21 October 2019, the second respondent, at paragraphs [4]–[8], stated:

4.    On 2 May 2014, Gregory started working for Cooloola Milk as a casual truck driver and told him he was employed on a casual basis.

5.    At the commencement of Gregory’s employment, I informed him that Cooloola Milk shuts down on Christmas Day and Good Friday every year. In my [sic] all my years running Cooloola Milk, Cooloola Milk has always shut down on Christmas Day and Good Friday.

6.    I paid Gregory, a fixed amount each week based on 38 hours per week even if he worked less than 38 hours or was absent from work.

7.    Gregory rarely worked more than 38 hours per week, and often worked less hours.

8.    Since about October 2017, I observed that Gregory was not efficient in performing his duties and he was not performing to the standard that I expected from someone in his role.

123    In responding specifically to the affidavit of the appellant, the second respondent, at paragraph [14.8] and without qualification, agreed with paragraph 8 of the appellant’s affidavit. Accordingly, it was not in dispute on the evidence that the appellant was first engaged (to use a neutral word) for a trial period of two weeks.

124    In cross-examination, the appellant gave the following evidence (T112:27–42):

MS WILLSON: Now, Mr Jess, I’m going to ask you about when you were first employed. You had a conversation with Richard Schroder - - -? ---Yes.

- - - about his need to have a - - -? ---Yes.

Somebody to drive some trucks? ---That’s right, yes.

He said he wanted you to drive some milk tankers? ---Yes.

And some heavy rigid vehicles? ---Yes.

And he told you that you would be a casual worker? ---No, nothing was mentioned about that at all.

He told you that you would be getting the same pay as Darryl? ---No, nothing was discussed about pay at all or - - -

125    Counsel for the respondents did not take the issue any further. In the cross-examination of the second respondent, the following evidence was given (T72:17–32):

And when you spoke to Greg initially, before he started working for you and you offered him the job, you never said to him at any time, “Greg, there might be weeks when I don’t have any work for you and you won’t get paid”. You never said anything like that to him? ---No.

You didn’t say to him, “Greg, there might be weeks where there isn’t as much work for you, and in those cases, you won’t be getting paid as much”. You never said anything like that? ---I did say there may be areas that will vary where you won’t have as much work. I did not say, “You won’t be getting paid”. I made that quite clear when he came to work for me, because up at the house, I was still incapacitated, I had been in hospital, and he came up and I told him what the deal was, and he said, yeah, that will be fine, or words to that effect.

And you never said to him, “There are entitlements that you have under the award to be paid over time of penalty rates, but the rate of pay I’m sending you will offset those entitlements”. You never said to - - -? ---I told him that’s how we operate.

126    Counsel for the appellant did not specifically question the second respondent as to the terms of the offer of employment or when it was made. Put at its highest, there was evidence that the second respondent told the appellant, at some point, that he would be employed as a casual employee. However, as explained in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 398 ALR 404; [2022] HCA 1 (Personnel Contracting), the label applied by the parties to describe their relationship is not determinative of its legal character: [63]–[67] per Kiefel CJ, Keane and Edelman JJ.

127    Counsel for the appellant submitted that, properly construed, there were two contracts: one for the trial and the other for permanent employment which followed successful completion of the trial. In my view, the evidence falls well short of establishing that proposition. Whether there was an agreement to pay the appellant for work undertaken during the trial period was not addressed by the primary judge. Nor was attention focused on whether the parties were subject to mutual obligations to provide work and to undertake it during the trial. In supplementary submissions from each party (at the request of the Court), it emerged as common ground that the appellant was paid at the rate of $21.57 per hour during the trial but counsel differed on the issue of mutuality of obligation. For the appellant, it was submitted that mutuality was lacking in that the purpose of the trial was to determine the appellant’s suitability for work. In contrast, for the respondents, it was submitted that a contract with mutual obligations was entered into: the appellant was obliged to attend work and to perform work for which the first respondent accepted a payment obligation.

128    In my view, the very nature of the trial arrangement, as best as it can be understood on the paucity of evidence, is that each party was free to not continue with the trial for whatever reason, by offering work or performing it. It is the absence of this mutual obligation between the parties that points against the conclusion that a contract of service was entered into for the trial period: Dietrich v Dare (1980) 54 ALJR 388; Personnel Contracting (at [107]–[108] per Gageler and Gleeson JJ.

129    The primary question that ought to have been addressed at the trial is whether an offer of employment was made “on the basis that” the first respondent “makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work” and if that offer was made, whether it was accepted.

130    In the interrogation of that question, s 15A(2) operates to limit the scope of the inquiry to the factors at subparagraphs (a)–(d). Additionally, each of subparagraphs (3) and (4) operate to make it clear that, first, a “regular pattern of hours does not of itself indicate a firm advance commitment” of the statutory character; and second, determination of the question of whether a person is a casual employee “is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party”. The parties did not conduct the case mindful of these requirements, even though the Amendment Act commenced during the period of a lengthy adjournment and before the evidence resumed on 10 May 2021. The parties were certainly aware of the provision and their submissions about it and its retrospective operation were put to the primary judge. However, no party made an application to amend the pleadings or to re-open the evidence.

131    During argument, the Court raised with counsel for each party whether, in the event that the Court concluded that the primary judge erred on the casual employment question, this aspect of the case should be the subject of an order for a new trial, so that each party would have a fair opportunity of presenting their respective cases in a way that addressed the requirements of s 15A. For the appellant, Mr Latham submitted that this course should not be taken in that there is no further evidence that the parties are able to give as to the terms of the contract. Ms Willson, for the respondents, accepted that it is open to make an order of that character, although it is not the preference of the respondents for the primary reason that this Court should make its own determination based on the evidence that was adduced at the trial.

132    Having regard to those submissions, I have concluded that I should not make an order for a new trial on the casual employment question, even though it is within the Full Court’s power to do so pursuant to s 28(1) of the Federal Court of Australia Act 1976 (Cth).

133    Applying the criteria at s 15A(2)(a)–(d) of the FWA for the reasons below, I conclude that the evidence does not permit me to make a factual finding that the appellant was offered, and accepted, employment by the first respondent on the basis that it made no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

Section 15A(2)(a): whether the employer can elect to offer work and whether the person can elect to accept or reject work

134    There is significant evidence to found the finding of fact that, at the time the offer was made, the respondents could not simply “elect” to offer the appellant work and the appellant could not simply “elect” to accept or reject that work.

135    When the second respondent offered to employ the appellant, he did not say that there may be weeks where there is less work or where the appellant would be paid less (T72:15–28). Rather, the appellant had regular shifts and was not given a roster (T72:15). In fact, work was always available for the appellant each week (T72:10–15) and he would probably undertake seven hours of work each day (T70:5–20; T8:5–10). It was therefore unsurprising that the appellant was paid a set wage based on a 38-hour week (PJ [175]; T72:5). Contrary to the primary judge’s decision that there was no regular pattern to the appellant’s work (PJ [102]), the evidence in my view leads to the finding that there was regularity and consistency to the appellant’s work. It was certainly not the case that the respondents were simply “electing” to offer work to the appellant on a casual or intermittent basis.

136    In addition, the appellant would ask Ms O’Halloran for her permission to take leave (T3:5); when granted, leave would be marked on a calendar and the second respondent would have the option to review the leave request in case he “had a problem with it” (T3:20). The appellant would also notify Ms O’Halloran when he was unable to attend work when ill (T3:10). What this evidence makes plain in my view, and I find, is that the appellant did not simply “elect” to choose when and whether he worked and I specifically disagree with the primary judge’s conclusion that the appellant could choose whether to work.

Section 15A(2)(b): whether the person will work as required according to the needs of the employer

137    In my view, this must be answered in the negative. As noted above, the fact is that work was always available for the appellant each week. There was no roster, the appellant had regular shifts and the appellant would usually undertake seven hours of work each day in order to fulfil his set duties. Thus, there was a regular pattern to the appellant’s work; he was not working as and when required by the first respondent.

138    This conclusion is supported by the fact that it was accepted by the parties, and indeed the primary judge, that “the [appellant] would mainly do a “Brisbane run” or some other type of run on Mondays, Wednesdays and Fridays … [and] the local run on Tuesdays, Thursdays, Fridays (after his Brisbane run) and on Sundays”: (PJ [95]). This fact plainly demonstrates a regular and consistent pattern to the appellant’s work; not one where the appellant was simply working casually as required according to the needs of the respondents. Although the primary judge also found that this pattern “eroded over time”, that is evidence of a variation to the content of the work required to be done: it does not point to a conclusion of casual employment that displaces the strength of each other factor.

Section 15A(2)(c) whether the employment is described as casual employment

139    On this issue, the second respondent gave evidence that the appellant was told he was a casual employee on the first day of what was to be a two-week trial. That the primary judge made a finding in accordance with this evidence at [93] is not dispositive of itself and is, ultimately, of little weight when considered in conjunction with each other fact that I have found as well as the consideration that the label applied by the parties is not determinative of the legal character of the contract: Personnel Contracting at [63]–[67] per Kiefel CJ, Keane and Edelman JJ.

Section 15A(2)(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument

140    On this issue, the evidence, and the findings of fact that I make, is that the appellant was paid no casual loading, received payment for sick days and holidays (i.e. personal and annual leave) (PJ [98]) and was ultimately given two weeks’ notice when dismissed (PJ [99]). These are benefits inconsistent with the nature and terms of casual employment.

Conclusion

141    When the evidence is analysed as required by subparagraphs (a)–(d) of s 15A(2), and findings of fact consistent with that evidence are made, I conclude that the second respondent, acting for and on behalf of the first respondent, did not make, and the appellant did not accept, an offer of employment on the terms that the first respondent made no firm advance commitment to continuing and indefinite work according to an agreed pattern of work. The primary judge should have concluded that the appellant was not a casual employee.

142    For these reasons, I uphold grounds 5 and 6.

Ground 13: contravention of the FWA ground

143    Although the appellant has succeeded on grounds 2 and 3, his failure on ground 4 requires that ground 13 (a) should be dismissed. His success on grounds 5 and 6 confers an entitlement to receive the statutory and award entitlements of a full-time employee and grounds 13 (b), (c) and (d) should be upheld. The manner of calculation of those entitlements and their quantum was not the subject of submissions advanced before us. For that reason, it is appropriate to remit this issue to the Federal Circuit and Family Court of Australia for further hearing and determination.

Ground 14: accessory liability ground

144    It was common ground before the primary judge that the second respondent was, at all material times, the directing mind and will of the first respondent. The evidence given by the second respondent when cross-examined (T66:22–44) sufficiently establishes that the second respondent was involved in the contraventions of the first respondent that I have found upon this appeal within the meaning of s 550 of the FWA as explained in Australian Building and Construction Commissioner v Parker (2017) 266 IR 340; [2017] FCA 564 (at [121]–[128] per Flick J). Certainly, no submission to the contrary was made to us by counsel for the respondents. The question of what, if any, orders should be separately made against the second respondent will also be remitted.

Conclusion

145    For these reasons, I would allow the appeal in part, save as to grounds 4 and 13 (a). That requires some adjustment to the orders made by the FCCA.

146    In my view, orders should be made as follows:

(a)    The appeal, save as to grounds 4 and 13(a), is allowed.

(b)    Orders 2 and 3 made by the Federal Circuit Court on 7 July 2021 are set aside and in substitution therefor order that the appellant’s claim pursuant to s 340 of the Fair Work Act 2009 (Cth) is dismissed.

(c)    The proceeding is remitted to the Federal Circuit and Family Court of Australia (Division 2) for further hearing and determination in accordance with these reasons.

(d)    The parties may file and serve any submissions (not exceeding 3 pages) as to the exercise of the power to make a costs order pursuant to s 570 of the Fair Work Act 2009 (Cth) or other consequential orders within 7 days of the publication of these reasons.

(e)    The question of costs, and any consequential orders, be determined on the papers.

Associate:

Dated:    10 May 2022