FEDERAL COURT OF AUSTRALIA

Tomvald v Toll Transport Pty Ltd [2018] FCA 969

ORDERS

THE COURT ORDERS THAT:

1.    Within 14 days:

(a)    counsel for the parties confer for the purposes of considering whether mediation of the balance of the proceedings by a judicial registrar of the Court is viable, noting that this will be raised by the Court at the next case management hearing; and

(b)    the parties furnish agreed or competing draft orders by email to the associate to Justice Bromwich to give effect to these reasons.

2.    Within 21 days, the parties furnish agreed or competing draft orders for the future conduct of the proceedings by email to the associate to Justice Bromwich.

3.    The matter be listed for a case management hearing at 9.00 am on 27 July 2018, unless procedural orders can be made in chambers before that date.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    The applicant, Mr Joshua Tomvald, is a freight handler employed by the first respondent, Toll Transport Pty Ltd. The second respondent, Mr Guy Barnard, is one of Toll’s operations managers.

2    This is the second proceeding brought by Mr Tomvald arising out of his employment by Toll. The first proceeding was heard over seven hearing days between November 2016 and March 2017 and determined by Flick J in a lengthy and detailed judgment delivered on 12 October 2017, reflecting the complexity of the dispute: Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 (first proceeding). At the core of both the first proceeding and the second proceeding are competing views as to what a change from casual to permanent employment for Mr Tomvald carried with it by way of workplace rights, especially in relation to when his working shifts would start.

3    By an interlocutory application, Toll seeks orders striking out Mr Tomvald’s concise statement, pursuant to r 16.21(1)(d) and (f) of the Federal Court Rules 2011 (Cth). Necessarily, that involves consideration of the corresponding parts of Mr Tomvald’s originating application. In the alternative, Toll seeks orders dismissing this second proceeding, pursuant to r 26.01(1)(d). The basis for Toll’s application is somewhat involved but, in summary, Toll asserts that this proceeding is no more than the litigation of matters that were, or should have been, determined in the first proceeding. Mr Tomvald asserts, in substance, that while the second proceeding flows from the outcome in the first, and, in particular, from the permanent full-time employment that he obtained as a result of Flick J’s decision, there is nothing wrong with the relief that is now being sought, and that Toll’s interlocutory application should therefore be dismissed.

4    Toll’s submissions provide a succinct summary of the legal principles generally applicable to the interlocutory relief it seeks. While there is some dispute as to what those principles mean and how they should be applied in this case, the substance of this dispute concerns the competing characterisation of what was decided by the first proceeding, and what is sought to be achieved by the second proceeding. Resolution of the contested views as to the law is not required in light of the resolution of the dispute on a characterisation basis.

5    To the extent that any claim has already been determined or should have been determined by Flick J, it cannot be maintained in the second proceeding. To the extent that any claim is not of that character, there is no pleading basis for striking it out or dismissing it, at least as this interlocutory application was argued. In those circumstances, it is not necessary to have regard to the detailed principles giving rise to the application of res judicata, issue estoppel or abuse of process, as debated by the parties in written submissions, oral submissions and post-hearing supplementary written submissions.

The evidence on this strike out/summary dismissal application

6    Toll has placed before the Court the pleadings, judgment and orders from the first proceeding, together with a copy of the Toll Group –TWU Enterprise Agreement 2013-2017. Toll has also tendered and had admitted into evidence certain post-judgment correspondence by which differing interpretations of Flick J’s judgment were conveyed, being:

(1)    an email sent by Mr Greg Selig, a consultant, on behalf of Mr Tomvald to Toll’s solicitors on 7 November 2017 (Selig email); and

(2)    a letter in reply to Mr Selig from Toll’s solicitors, dated 7 November 2017 (LBC letter).

7    Part of the LBC letter is alleged by Mr Tomvald to contain knowingly false representations made to him as to Toll’s operational requirements as a justification for the working hours he was being offered. That allegation is the substance of the fourth claim in the second proceeding.

8    Mr Tomvald tendered and had admitted a transcript of day four of the first proceedings before Flick J, dated 1 December 2016.

Summary of Toll’s argument

9    Toll characterises the claims made by Mr Tomvald in the second proceeding as “inextricably entwined” with an assertion (it says, incorrectly made) that the first proceeding upholds a legal entitlement for him to commence his shifts at 4.00 am. Toll submits that Mr Tomvald is making a collateral challenge to Flick J’s finding that there were operational reasons for Toll to direct Mr Tomvald to commence work at 5.00 am, and that such a direction given to him was not for a prohibited reason. Toll describes the second proceeding as an attempt by Mr Tomvald to overcome his defeat before Flick J on those two points.

10    Toll, by its written submissions, asserts that the following fundamental problems arise in the way in which the second proceeding is pleaded:

(a)    The foundational claim of [Mr Tomvald], and upon which his other derivative claims rely, is the assertion that [he] was entitled to a starting time of 4am pursuant to clause 21(e) of the applicable enterprise agreement;

(b)    In reliance on the above foundational claim, it is again alleged that [Toll] contravened clause 21(e) of the applicable enterprise agreement in its refusal to, during the period 6 to 28 November 2017, to offer to [Mr Tomvald] a starting time of 4am;

(c)    The alleged unlawful adverse action is also inextricably connected with [Toll’s] refusal to offer to [Mr Tomvald] a starting time of 4am with the consequential adverse outcomes for [him];

(d)    Each of these fundamental and derivative issues have been determined in the earlier proceedings. The substance of the claims maintain as their foundation the asserted entitlement flowing from, and relating to, [Mr Tomvald’s] employment as a casual employee immediately prior to 24 May 2016. Notwithstanding that, [he] now seeks to address the claims as relating to his capacity as a permanent full time employee and with reference to the circumstances occurring after the earlier proceedings;

(e)    Further, to the extent that the issues of the entitlement of [Mr Tomvald] under clause 21(e) of the applicable enterprise agreement and the alleged unlawful adverse action are cast in the context of his employment as a permanent full time employee, these are matters which could have properly been pursued, and should have been pursued, as an aspect of [his] alternative claim in the earlier proceedings particularly in circumstances where he alleged in these proceedings that he was, in fact, a permanent employee at the time of the shift changes;

(f)    The further claims pursued in the present proceedings derive from the above foundational claims and, indeed, absent re-litigating and establishing the foundational claims, such further claims, cannot be independently pursued; and

(g)    The present proceedings are also an abuse of process of the Court inasmuch as they are a collateral challenge by [Mr Tomvald] to the findings of Flick J relating to the earlier proceedings.

Summary of Mr Tomvald’s argument

11    By his written submissions, Mr Tomvald submits that Toll’s argument, despite the length and complexity of its written submissions, comes down to two incorrect propositions, to the effect that the first proceeding determined that he is not entitled to a 4.00 am start time; and that the entirety of the second proceeding is predicated on a legal entitlement to a 4.00 am start time, when in fact three of the four claims do not depend on any such separate right existing. He therefore contends that the outcome of the first proceeding, far from precluding the second claim, provides a part of its foundation, but otherwise is not affected. He advances four claims in the second proceeding that may be summarised as follows:

(1)    He claims that Toll has breached cl 21(e) of the Enterprise Agreement by refusing to convert his casual employment to permanent employment that is “like for like” with his casual employment prior to 18 May 2016. Particularly, he claims that his casual employment prior to 18 May 2016 included a fixed 4.00 am start time, but that Toll refuses to allow him to begin work at 4.00 am and instead insists he begin at 5.00 am. In support of this claim, he relies on declaration 2 in the first proceeding.

(2)    He claims that Toll has breached cl 17(b) of the Enterprise Agreement by using part-time employees instead of him in circumstances where the Enterprise Agreement requires that full-time employees be fully utilised before casual and part-time employees. In support of this claim, he intends to rely at trial on time and wage records which show that part-time employees are beginning work before him and finishing later.

(3)    He claims that Toll and Mr Barnard (the second respondent) have taken unlawful adverse action against him by offering him fewer hours than other full-time employees. In support of this claim, he intends to rely on:

(a)    time and wage records which show that every full-time employee in his section works at 4.00 am except him;

(b)    evidence to the effect that he has been directed to not work overtime in circumstances where all other full-time employees regularly work significant overtime; and

(c)    time and wage records which show that Toll chooses to use other employees ahead of him even when it is more expensive for Toll to use another employee.

(4)    He claims that Toll breached cl 9 of the Enterprise Agreement by falsely stating that Toll had no need for a freight handler to begin work at 4.00 am at Mr Tomvald’s depot. In support of this claim, he intends to rely on the LBC letter and on time and wage records which show that many freight handlers at his depot begin work at 4.00 am, and, further, that 10 freight handlers in his section began work at 4.00 am on the very day that the LBC letter was sent.

The first proceeding before Flick J

12    It is necessary to consider the competing arguments in some detail in order to determine which should prevail. However, in order to understand the competing arguments, it is first necessary to set out as concisely as possible the substance of the first proceeding as is relevant to the second proceeding, including what was relevantly decided.

13    A key document in both the first proceeding and the second proceeding is the Enterprise Agreement, key aspects of which are as follows:

(1)    Clause 2 provides:

The objects of this Agreement include the following:

(a)    promoting job security, effective workplace representation and training for Transport Workers;

(b)    enhancing the safety and fairness of Toll’s operations;

(c)    maintaining the safety net and enhancing fair working conditions for Transport Workers;

(d)    enhancing the productivity and efficiency of Toll’s operations; and

(e)    subject to reasonable practical requirements, such as adequately servicing industry peaks, promoting job security through the full utilisation of full-time permanent Transport Workers before the engagement of part-time, casual, labour hire or outside hire workers.

(2)    Clause 3 defines “Transport Workers” as meaning any person eligible to be a member of the TWU and who is employed by Toll in any of the classifications in the “Award”, being the Road Transport and Distribution Award 2010 and the Road Transport (Long Distance Operations) Award 2010, or in the “Local Agreements”. The details of what the Local Agreements are and provide is not presently material.

(3)    Clause 4.1 provides that the Enterprise Agreement applies to and is binding upon Toll, all “Transport Workers” and the Transport Workers Union (TWU).

(4)    Clause 6(a) provides that the Enterprise Agreement incorporates the Award, but that Part A and the Local Agreements prevail to the extent of any inconsistency, which does not include the Award providing a more beneficial entitlement.

(5)    Clause 14 provides that, if Toll considers workplace changes that are likely to have a significant effect on Transport Workers, Toll must consult with the TWU and any Transport Workers who would be affected.

(6)    Clause 21(e) provides:

Subject to clause 21 (f), where a casual Transport Worker has been directly employed by Toll or engaged through a labour hire company to perform work for Toll on a regular and systematic basis for more than 6 months, the Transport Worker may elect to become a permanent Transport Worker, on a like for like basis, within the specific business unit at which the Transport Worker is engaged, in accordance with the Award.

14    Clause 12.6 of the Award deals with employees’ “right to elect” to convert from casual employment to permanent employment. The key subclause is cl 12.6(a), which provided as follows (emphasis in original):

A casual employee, other than an irregular casual employee who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 12 months will thereafter have the right to elect to have their contract of employment converted to full-time employment or part-time employment if the employment is to continue beyond the conversion process.

15    Flick J summarised the dispute before his Honour as follows:

2.    Mr Tomvald is a 26 year old freight handler.

3.    The identity of his employer has changed over time. As from 2007 it would appear that he was initially employed by Toll Personnel Pty Ltd. That company traded as “Toll People”. In October 2012 he was offered “an appointment as a Freight Handler on a casual basis with Toll Pty Ltd … one of the Toll Group of companies”. By letter dated 26 May 2015 Mr Tomvald was, however, notified of “a proposed change to [his] employer company”. As at that date, the letter notifying him of the proposed change identified his current employer as Toll Ipec Pty Ltd. The same letter informed him that from 1 July 2015, his employer company would become “Toll Transport Pty Limited … the group’s primary operating entity in Australia”.

4.    Although the precise identity of his employer may well have changed over time, the fact remains that he has been employed by one or other of the Toll Group of companies as a freight handler for a period of almost a decade.

5.    In April 2016 Mr Tomvald approached Toll Transport and sought to convert his position as a casual employee to a permanent position. He claimed an entitlement to a permanent position employed for 38 hours per week. Toll Transport offered him a permanent part-time position for only 30 hours per week.

6.    That offer was not acceptable to Mr Tomvald. He commenced this proceeding. He claims (inter alia) that he has a right to convert from casual employment to permanent employment on a “like for like” basis. Previously he worked Monday to Friday commencing normally at 4.00am and generally did an 8 hour shift. He wants a like position on a permanent basis. He also claims that Toll Transport have contravened a number of provisions of the Fair Work Act 2009 (Cth) (the “Fair Work Act”). In all, nine contraventions are alleged. Mr Tomvald seeks declaratory relief, compensation and orders for the imposition of penalties with any penalties to be payable to Mr Tomvald.

16    The contraventions pleaded in Mr Tomvald’s further amended statement of claim dated 30 November 2016 (FASOC) in the first proceeding were as follows, with the successful claims, being contraventions 2, 5, 6, 7 and 9, emphasised in bold:

Contravention 1: failure to notify of conversion rights

29.    Toll Transport did not notify [Mr Tomvald] in writing of the provisions of clause 21(e) of the Agreement and 12.6 of the Award (as incorporated into the Agreement), after six months’ regular and systematic employment.

Contravention 2: failure to provide time and wages records

30.    Toll Transport has not produced the Records.

Contraventions 3 and 4: adverse action

31.    On 9 June 2016 Toll Transport directed [Mr Tomvald] to work no more than five hours per shift.

32.    Other workers employed in the same position and at the same site as [Mr Tomvald] were not subject of the same direction capping their hours.

33.    Toll Transport did not offer any explanation for its direction capping [Mr Tomvald]’s hours.

34.    In capping [Mr Tomvald]’s hours at five hours per shift, Toll Transport altered [Mr Tomvald]’s position to his prejudice.

35.    Toll Transport capped [Mr Tomvald]’s hours at five hours per shift because of his exercise of his workplace rights identified at paragraphs 23-28 above.

36.    On around 24 May 2016 Toll Transport changed [Mr Tomvald]’s starting time from 4am to 5am.

37.    By changing [Mr Tomvald]’s starting time from 4am to 5am, Toll Transport deprived [Mr Tomvald] of the benefit of an early morning shift loading.

38.    In changing [Mr Tomvald]’s starting time from 4am to 5am, Toll Transport altered [Mr Tomvald]’s position to his prejudice.

Particulars

As a result of the later start [Mr Tomvald] lost 12.5% of his pay in the form of an early morning shift loading.

39.    The starting time of other workers employed in the same position and at the same site as [Mr Tomvald] were not changed to 5am.

40.    Toll Transport altered [Mr Tomvald]’s starting time because of his exercise of his workplace rights identified at paragraphs 23-28 above.

Contraventions 5 and 6: failure to consult in relation to alteration of hours

41.    Toll Transport did not consult with [Mr Tomvald] in relation to its decision to cap his hours at five hours per shift.

42.    Toll Transport did not consult with [Mr Tomvald] in relation to its decision to change his starting time from 4am to 5am.

Contravention 7: misrepresentation in relation to workplace right

43.    [Mr Tomvald] appointed a representative for the purposes of the dispute as he was entitled to do pursuant to the Agreement's dispute procedure.

44.    On 24 May 2016, Toll Transport represented to [Mr Tomvald] that he was not entitled to appoint a representative for the purposes of a dispute notified under the Agreement’s dispute procedure (the Misrepresentation).

Particulars

Conversation between [Mr Tomvald]’s representative and Ms Tamara Green on 24 May 2016.

45.    Toll Transport made the Misrepresentation knowingly or alternatively recklessly.

Contravention 8: failure to maintain the status quo

46.    By virtue of clause 15(g) of the Agreement, Toll Transport was obliged to maintain the status quo as it existed before the Dispute arose.

47.    By capping [Mr Tomvald]’s hours of work, Toll Transport departed from the status quo as it existed before the Dispute arose.

Contravention 9: failure to convert on a like-for-like basis

48.    By refusing to convert [Mr Tomvald]’s employment to permanent employment working the same hours he worked during the twelve months prior to 18 May 2016, Toll Transport contravened clause 21(e) of the Agreement and 12.6 of the Award (as incorporated into the Agreement by clause 6(a) of the Agreement).

17    The submissions for Toll succinctly summarise Flick J’s determination of each issue raised by Mr Tomvald as follows (contravention numbers from the FASOC inserted in square brackets and bolded; original emphasis otherwise):

Ultimately, [Mr Tomvald] advanced ten separate claims. Stated briefly, these claims, and the resolution of these claims respectively, were:

(a)    First, and as noted above, an alternative claim pursued by [Mr Tomvald] was that that he was already a “permanent employee”. If he was a “permanent employee” any question as to his “right” to convert from casual to permanent became unnecessary to resolve.

This claim is addressed at paragraphs 39 to 66 of the Judgment Reasons. It was concluded that [Mr Tomvald] was a casual employee, including from the time when he was employed by the First Respondent from 1 July 2015;

(b)    Second, and as the primary claim, [Mr Tomvald] alleged that the First Respondent had refused to convert his employment to permanent employment “on a like-for-like basis” in contravention of clause 21(e) of the 2017 Enterprise Agreement and clause 12.6 of the applicable award and thereby s 50 of the Fair Work Act 2009 (Cth) (FW Act). [Contravention 9]

This claim is addressed at paragraphs 67 to 102 of the Judgment Reasons. It was concluded that clause 21(e) did confer a right to convert to full-time permanent employment and that [Mr Tomvald] had sought to exercise that right on 25 May 2016 and was wrongfully denied the employment to which he was entitled which was “full-time permanent employment of 38 hours per week”;

(c)    Third, [Mr Tomvald] alleged that the First Respondent had failed to notify him of, inter alia, the provisions of clause 21(e) of the 2017 Enterprise Agreement. [Contravention 1]

This claim is addressed at paragraphs 103 to 111 of the Judgment Reasons. It was concluded that [Mr Tomvald] had failed to make out this contravention;

(d)    Fourth, [Mr Tomvald] alleged that the First Respondent had failed to produce time and wage records as sought by him. [Contravention 2]

This claim is addressed at paragraphs 112 to 134 of the Judgment Reasons. It was concluded that the First Respondent had contravened regulations 3.42, 3.34 and 3.43 of the Fair Work Regulations 2009 (Cth);

(e)    Fifth and sixth, it was alleged by [Mr Tomvald] that the First Respondent had taken adverse action contrary to s 340 of the FW Act. The alleged adverse action included the change to [Mr Tomvald]’s starting time from 4am to 5am. This adverse action was pleaded in the following terms: [Contraventions 3 and 4]

(i)    “(O)n around 24 May 2016 Toll Transport changed [Mr Tomvald]’s starting time from 4am to 5am”;

(ii)    “(B)y changing [Mr Tomvald]’s starting time from 4am to 5am, Toll Transport deprived [Mr Tomvald] of the benefit of an early morning shift loading”;

(iii)    “(I)n changing [Mr Tomvald]’s starting time from 4am to 5am, Toll Transport altered [Mr Tomvald]’s position to his prejudice”; and

(iv)    “(T)he starting time of other workers employed in the same position and at the same site as [Mr Tomvald] were not changed to 5am”;

This claim is addressed at paragraphs 135 to 204 of the Judgment Reasons. It was concluded that the First Respondent had not taken unlawful adverse action and, to the extent that [Mr Tomvald]’s hours of work were capped and his starting time changed from 4am to 5am from 24 May 2016, this was for operational reasons and a “consequence of the plan to reduce labour costs”;

(f)    Seventh and eighth, it was alleged that the First Respondent had failed to consult with [Mr Tomvald] in relation to the capping of his hours and the alteration of his hours of work in accordance with clause 14 of the 2017 Enterprise Agreement. [Contraventions 5 and 6]

This claim is addressed at paragraphs 205 to 229 of the Judgment Reasons. It was concluded that these contraventions were made out;

(g)    Ninth, it was alleged that the First Respondent had wrongly represented to him “that he was not entitled to appoint a representative for the purposes of a dispute notified under the Agreement’s dispute procedure”. [Contravention 7]

This claim is addressed at paragraphs 230 to 247 of the Judgment Reasons. It was concluded that this contravention was made out; and

(h)    Tenth, it was alleged that there had been a failure to maintain the status quo pending the resolution of the dispute in relation to the capping of his hours and the alteration of his starting times. In this regard, as noted by Flick J at paragraph 249 of the Judgment Reasons, “(T)he case advanced on behalf of Mr Tomvald was that Toll Transport had to maintain the status quo prevailing as at 18 May 2016”. [Contravention 8]

This claim is addressed at paragraphs 248 to 284 of the Judgment Reasons. It was concluded that [Mr Tomvald] had failed to make out this contravention.

18    Mr Tomvald takes issue with paragraph (b) above. He contends that neither Flick J’s reasons, nor his Honour’s declaration 2, reproduced in the next paragraph, limited the rights that Mr Tomvald obtained by converting from casual to permanent full-time work to the number of hours that he would work, namely 38 hours. Rather, he contends that he also obtained, via cl 21(e) of the Enterprise Agreement, the “like for like” right to commence work at 4.00 am. This difference of interpretation is a key issue in dispute between the parties as to the meaning to be given to declaration 2, reproduced in the next paragraph; and the meaning to be given to [71] of Flick J’s reasons, reproduced at [22] below.

19    The declarations and orders corresponding to the findings made by Flick J on 27 October 2017 were as follows (emphasis in original):

THE COURT DECLARES THAT:

1.    The Respondent contravened:

(a)    section 50 of the Fair Work Act 2009 (Cth) (FW Act) and clause 21(e) of the Toll Group - TWU Enterprise Agreement 2013-2017 (the Agreement) by failing on or around 27 May 2016 to convert [Mr Tomvald]’s casual employment to permanent full-time employment;

(b)    regulation 3.42 of the Fair Work Regulations 2009 (Cth) (FW Regulations) by failing on or around 30 May 2016 to produce records as to overtime hours worked as required by regulation 3.34 of the FW Regulations;

(c)    regulation 3.43 of the FW Regulations by failing on or around 25 May 2016 to tell [Mr Tomvald] where the records as to overtime hours were kept;

(d)    section 345(1) of the FW Act by representing on or around 24 May 2016 to [Mr Tomvald] that he was not entitled to appoint a representative for the purposes of a dispute notified under the Agreement's dispute procedure; and

(e)    section 50 of the FW Act and clause 14 of the Agreement by failing on or about 9 June 2016 to consult with [Mr Tomvald] in relation to the capping of his hours and by failing on or about 24 May 2016 to consult with [Mr Tomvald] in relation to the change in his start time.

2.    Pursuant to clause 21(e) of the Agreement, the Respondent is obliged to convert [Mr Tomvald]’s employment to permanent full-time employment on a like-for-like basis with his casual employment prior to 18 May 2016.

AND THE COURT ORDERS THAT:

3.    Pursuant to section 545(3) of the FW Act, and as compensation in respect of its contravention identified at 1(a) of these orders:

(a)    the Respondent pay to [Mr Tomvald] the sum of $42,940, less any applicable taxation; and

(b)    the Respondent make a contribution to [Mr Tomvald]’s superannuation fund (TWUSUPER) of an amount of 12.5% of the sum identified at order 3(a) above.

4.    Pursuant to s 546(1) of the FW Act, the Respondent pay civil penalties in respect of its contraventions in the amount of $42,500.

5.    Pursuant to s 546(3) of the FW Act, the penalties levied be paid to [Mr Tomvald].

20    It can thus be seen by declaration 1(a) that Flick J found that Mr Tomvald had a right to convert to permanent full-time employment and that Toll had contravened s 50 of the Fair Work Act 2009 (Cth) (FW Act) and cl 21(e) of the Enterprise Agreement. The contravention took place because Toll failed, on or around 27 May 2016, to convert Mr Tomvald’s causal employment to permanent full-time employment. His Honour also made declaration 2 that pursuant to cl 21(e), Toll was obliged to convert Mr Tomvald’s employment to permanent full-time employment on a “like for like” basis with his casual employment prior to 18 May 2016. It should be noted that the conversion took place after Flick J’s decision.

21    The meaning of the phrase “like for like” in cl 21(e) of the Enterprise Agreement remains a point of controversy, due in part to the way in which his Honour’s finding was manifested in the final form of the declarations and orders made and entered, as reproduced above. Mr Tomvald contends that it entitled him to retain the same shift start time of 4.00 am; whereas Toll denies that this was the entitlement as found by Flick J.

22    Flick J addressed the “like for like” issue in several places in his Honour’s reasons. First, on the topic of the right to convert from casual to permanent employment, his Honour said:

67.    Albeit the last of the contraventions pleaded, it was the ninth contravention which assumed primary importance for Mr Tomvald.

68.    The ninth contravention alleged by Mr Tomvald is that Toll Transport refused to convert his employment to permanent employment “on a like-for-like basis”. This allegation obviously assumes that there is a right on the part of Mr Tomvald to convert his employment from casual to permanent and seeks to focus specific attention upon both the source of that right and the nature of the permanent employment to which he says he is entitled.

69.    Paragraphs [29] through to [48] of the Further Amended Statement of Claim set forth the contraventions alleged. Paragraph [48] pleads as follows (without alteration):

Contravention 9: failure to convert on a like-for-like basis

48.    By refusing to convert [Mr Tomvald]’s employment to permanent employment working the same hours he worked during the twelve months prior to 18 May 2016, Toll Transport contravened clause 21(e) of the Agreement and 12.6 of the Award (as incorporated into the Agreement by clause 6(a) of the Agreement).

The principal relief sought, as set forth in the Further Amended Statement of Claim, is a declaration that “Toll Transport is obliged to convert [Mr Tomvald]’s employment to full-time permanent employment”. An order is also sought for the payment of compensation and an order for the imposition of penalties.

70.    The claim by Mr Tomvald is that Toll Transport has not complied with the right conferred by cl 21(e) of the Enterprise Agreement and cl 12.6 of the Award and thereby contravened s 50 of the Fair Work Act. Any penalty imposed should, he maintains, be made payable to him.

71.    It is concluded that cl 21(e) does confer a right to convert to full-time permanent employment. Permanent full-time employment is employment for a period of 38 hours per week. Mr Tomvald sought to exercise that right on 25 May 2016 and was wrongfully denied the employment to which he was entitled when Mr Jones emailed Mr Selig on 27 May 2016 offering permanent employment of 30 hours per week. The offer made to Mr Tomvald, accordingly, fell short of offering him the full-time permanent employment of 38 hours per week to which he was entitled.

23    Flick J set out in considerable detail the legal and factual basis for the conclusion stated at [71] that cl 21(e) conferred upon Mr Tomvald a right to convert to permanent full-time employment of 38 hours per week. Mr Tomvald contends that the basis so expressed reveals that the right so found was not confined to the hours of work, but extended to a right as to when that work would commence, namely at 4.00 am.

24    Flick J identified the source of the right to convert from casual to permanent employment as being cl 21(e) of the Enterprise Agreement and cl 12.6 of the Award, the text of which are reproduced at [13(6) and 14] above. Flick J considered that the drafting differences between the two sources of the right assumed no present relevance because Mr Tomvald had been regularly employed in excess of 12 months when he sought to exercise the right. As such, cl 21(e) was the source relied upon.

25    Flick J needed to ascertain the hours that had previously been worked by Mr Tomvald to ascertain what the content of the existing “like for like” right was. The parties were able to reach agreement on that objective fact and provided to his Honour a table summarising the hours that Mr Tomvald had worked for the 12-month period prior to May 2016. That table was reproduced at [79] of his Honour’s reasons as follows:

26    Flick J then turned to the issue of what “like for like” rights flowed from that history of working hours. Because this dispute relates to just what his Honour decided and meant by the declarations made, it is necessary to reproduce this part of his Honour’s reasons at some length, not least because Mr Tomvald expressly relies upon all of [84] to [99] of his Honour’s reasons, while Toll places more emphasis on [91] and [92]. His Honour said:

A like for like basis

80.    It is against this factual background and the terms of cl 21(e) of the Enterprise Agreement that the offer made to Mr Tomvald is to be considered.

81.    The offer as initially contemplated in the letter dated 18 May 2016 seeking “Expressions of Interest for Permanent Part-time Positions” was an offer for positions “made up of 4 hour, 5 hour and 6 hours shifts”. The offer as ultimately made to Mr Tomvald, as communicated in an email sent on 27 May 2016 was for “30 hours a week” which was said to be “in line with Cl. 21(e) of the Toll Group – TWU Enterprise Agreement and the award”.

82.    The basis upon which “expressions of interest” were first sought and the subsequent offer were made and the calculations undertaken by Toll Transport at the time the offer was made need to be revisited when consideration is given to whether Toll Transport made the offer “because” of the exercise of any “workplace right”. For present purposes, what matters is whether the offer as made was in accordance with the entitlement conferred by cl 21(e).

83.    It is concluded that the offer did not reflect the right conferred by cl 21(e) to convert to permanent employment on a “like for like basis”.

84.    Clause 21(e) is not a clause without difficulty of construction, not the least of which is the meaning to be ascribed to the phrase “a like for like basis”.

85.    No difficulty of application arises in respect to the introductory terms of cl 21(e). At the time he sought to exercise the right to convert, Mr Tomvald had been “directly employed by Toll ... to perform work for Toll on a regular and systematic basis for more than 6 months”.

86.    Nor is there difficulty in accepting that the clause conferred a right to “elect to become a permanent Transport Worker”.

87.    Some initial difficulty is encountered by reason of the fact that neither the Award nor the Enterprise Agreement defined “permanent Transport Worker”. Clause 12 of the Award set forth the three bases upon which an employee may be engaged, being “full-time, part-time or casual”, under the heading “[t]ypes of employment”. A full-time employee was there defined as “an employee who is engaged to work an average of 38 ordinary hours per week”. But cl 12 did not refer to a position described as a “permanent Transport Worker”. The reference to 38 hours per week, however, has a parallel in cll 3 and 22 of the Enterprise Agreement, which define a “Permanent Part-Time Transport Worker” as (inter alia) one who is rostered to work less than 38 hours per week. Clause 3 of the Enterprise Agreement defines the phrase “Transport Workers” but does not define “permanent Transport Worker”.

88.    Notwithstanding such limited ambiguity as may be occasioned by the absence of an express definition of the phrase “permanent Transport Worker”, it is readily apparent that such a person is an employee who is not a casual employee and who works not less than 38 hours per week.

89.    The concluding phrase found within cl 21(e), namely “in accordance with the Award”, also presents some difficulty. Clause 12.6 of the Award also addresses “[c]onversion of casual employment”. That clause sets forth both procedural and substantive provisions addressing both the procedure to be followed (e.g., cl 12.6(b)) and the substantive right to convert (cl 12.6(a)). But that to which the right conferred by cl 21(e) is qualified is expressed to be “the Award” as a whole. The right to convert conferred by cl 21(e) of the Enterprise Agreement, it is concluded, covers the field as to the right to convert to the exclusion of cl 12.6. Other than providing some limited assistance as to the meaning of the phrase “permanent Transport Worker” employed in cl 21(e), the concluding phrase within cl 21(e) has little other work to do.

90.    The greatest difficulty of construction, and the difficulty which consumed the bulk of oral submissions, was the meaning to be given to the phrase “like for like”. That phrase is not defined.

91.    Casual employees, like Mr Tomvald, were persons who did not have the security of a permanent position and who were subject to employers choosing to offer either work or no work and were persons who could choose to work if they so wished (cf. Reed v Blue Line Cruises Ltd (1996) 73 IR 420). Casual employees were also employees who (inter alia):

•    received a salary loading not received by permanent employees; and

•    were not entitled to holiday leave or sick leave.

A “like for like” conversion from casual employment to a permanent position, obviously enough, required some transition from the rights and entitlements of a casual employee to those of a permanent employee. A “like for like” conversion would not entitle a casual worker to take with him all of those rights and entitlements which casual workers possess but which are not possessed by a permanent worker. Conversely, conversion from the position of a casual employee to that of a permanent employee would carry with it some new and additional benefits that were not possessed by casual employees.

92.    Subject to such general observations, it is considered imprudent to attempt any rigid definition of the phrase “like for like”. The phrase is to be interpreted in the same manner as other provisions of an industrial agreement, namely “with a practical bent of mind” and in the manner which it was “likely to have been understood in the context of the relevant industry”: Kucks v CSR Ltd (1996) 66 IR 182 at 184 per Madgwick J. The phrase is to be understood as requiring a comparison between the nature and extent of the work previously performed by a casual employee with that of a permanent employee performing much the same work. It is a phrase which necessarily has to be applied to the facts and circumstances of each individual employee and the workplace in which work is performed.

93.    Although a mathematical calculation (such as that performed by Mr Selig) may help to inform the application of the phrase to the facts of a particular employee, at the end of the day it remains a matter for practical judgment.

94.    On the facts of the present case, the nature and extent of the ordinary hours worked by Mr Tomvald was that of an employee who regularly worked a little less than 8 ordinary hours per shift and about 34 hours per week. If reference is made to the actual number of hours worked, being ordinary hours together with overtime, he worked a little more than 8 hours per shift and a little more than 38 hours per week. For the purpose of these calculations, the average weekly hours worked are calculated on the basis of Mr Tomvald working 46 weeks per year, which is considered appropriate given that a casual worker is not entitled to sick leave or holiday leave. A permanent employee who takes sick leave and holiday leave would also work for 46 weeks per year.

95.    The comparison, it is accepted, may not be mathematically precise. But mathematical precision is not required. It is a tool which merely assists in reaching an informed decision when comparing competing positions. Nor should it be expected, in an industrial context, that a detailed auditing of actual hours worked be undertaken before reliance can be placed upon cl 21(e).

96.    To meet the requirements of cl 21(e) to convert his employment on a “like for like” basis, Mr Tomvald was entitled to a permanent full-time position.

97.    A position which offered “4 hour, 5 hour and 6 hour shifts” fell short of that entitlement. On any view of the facts, Mr Tomvald was regularly working Mondays to Fridays for periods in excess of 6 hours per shift.

98.    The right which is conferred upon an employee by cl 21(e) is not to be constrained by that which an employer may be prepared to offer. Clause 21(e) confers a valuable right upon a casual employee who can bring himself within the benefit of that clause. That right is not merely a right to convert to a permanent position; it is also a right to convert to a permanent position on a “like for like basis”. It is not a matter within the sole province of an employer to offer less than the right conferred.

99.    No case was sought to be advanced that a permanent full-time position was not available for Mr Tomvald.

The second proceeding

27    On 21 December 2017, Mr Tomvald filed an originating application and concise statement initiating this proceeding. In the originating application, Mr Tomvald seeks the following relief (emphasis in original):

On the grounds stated in the accompanying concise statement, [Mr Tomvald] claims:

1.    A declaration that the first respondent has contravened:

a.    s340 of the Fair Work Act 2009 (Cth} (FW Act) by taking unlawful adverse action against [Mr Tomvald];

b.    s50 of the FW Act and clause 21(e} of the Toll Group - TWU Enterprise Agreement 2013-2017 (the Agreement) by refusing to allow [Mr Tomvald] to begin work at 4am;

c.    s50 of the FW Act and clause 17(b) of the Agreement by utilising casual and part­time employees ahead of Mr Tomvald; and

d.    s50 of the FW Act and clause 9 of the Agreement by falsely representing to [Mr Tomvald] that it had no operational requirement for a freight handler to begin work at 4am Tuesday to Thursday inclusive.

2.    A declaration that the second respondent was involved in each of the contraventions identified at [1] above.

Compensation

3.    An under s545(3) of the FW Act that the first respondent pay [Mr Tomvald] compensation, in an amount to be specified, for its contraventions identified at [1] above.

4.    An order under s545(1) and 547(2) of the FW Act that the first respondent pay interest on the compensation awarded.

Penalties

5.    An order under s546(1) of the FW Act that the first respondent pay a penalty in respect of its contraventions identified at [1] above.

6.    An order under s546(1) of the FW Act that the second respondent pay a penalty in respect of his contraventions of the FW Act.

7.    An order under s546(3) of the FW Act that any penalties levied be paid to [Mr Tomvald].

Other

8.    An order under s545(1) of the FW Act that the first respondent engage at its expense a third party with qualifications in workplace relations to deliver training to the first respondent’s managers based at the Bungaribee depot (including but not limited to the second respondent) addressing:

a.    the rights and obligations of the first respondent under the Agreement; and

b.    the adverse action provisions of the FW Act.

28    The pleaded facts relied upon, as set out in Mr Tomvald’s concise statement, are as follows (emphasis in original):

A.    The important facts giving rise to the claim

1.    The applicant Mr Joshua Wayne Tomvald is an employee of the first respondent (Toll). Mr Tomvald is employed as a AM freight handler at the Toll depot at Bungaribee.

2.    The second respondent Mr Guy Barnard is the AM/PM operations manager for the Bungaribee depot.

3.    The Toll Group - TWU Enterprise Agreement 2013-2017 (the Agreement) is an enterprise agreement made under the Fair Work Act 2009 (Cth) (FW Act) which covers and applies to Mr Tomvald and Toll.

4.    In 2016 Mr Tomvald brought proceedings against Toll alleging, inter alia, breaches of the Agreement and unlawful adverse action.

5.    Mr Tomvald’s primary complaint was that Toll had refused to convert his casual employment to permanent employment on a “like-for-like” basis with the hours he worked prior to 18 May 2016. Another matter complained about by Mr Tomvald was the change of his starting time from 4am to 5am on around 24 May 2016.

6.    The proceedings were determined in October 2017 in favour of Mr Tomvald: Tomvald v Toll Transport Pty Ltd [2017] FCA 1208. On 27 October 2017 the Court made orders by consent. The orders included a declaration that:

Pursuant to clause 21(e) of the Agreement, the Respondent is obliged to convert [Mr Tomvald]’s employment to permanent full-time employment on a like-for-like basis with his casual employment prior to 18 May 2016.

7.    The Court made various other orders and imposed pecuniary penalties on Toll.

8.    In around November 2017 Mr Tomvald’s employment was converted to permanent full­time employment.

9.    Following the conversion of his employment:

(a)    Toll has refused to return Mr Tomvald to his start time as it stood prior to 24 May 2016, that is, 4am; and

(b)    Mr Tomvald has been directed to start work later than the other AM freight handlers at the Bungaribee depot.

10.    Between around 1 November 2017 and 29 November 2017:

(a)    each of the permanent full-time AM freight handlers at the Bungaribee depot other than Mr Tomvald began work at 4am or earlier;

(b)    some of the permanent part-time AM freight handlers at the at the Bungaribee depot begin work at 4am or earlier;

(c)    Mr Barnard directed that Mr Tomvald begin work at 5am on every day but Monday.

11.    From 30 November 2017 onward:

(a)    each of the permanent full-time AM freight handlers at the Bungaribee depot other than Mr Tomvald began work at 3am or earlier;

(b)    some of the permanent part-time AM freight handlers at the at the Bungaribee depot begin work at 3am or earlier;

(c)    Mr Barnard directed that Mr Tomvald begin work at 4am on every day.

12.    The effect of Mr Barnard’s direction has been to minimise Mr Tomvald’s earnings by minimising his working hours and depriving him of an early morning shift allowance.

13.    On 7 November 2017 Toll responded to Mr Tomvald’s complaint by stating that it had no operational requirement for a freight handler such as Mr Tomvald to commence work from the Bungarribee facility at 4:00am on Tuesdays to Fridays inclusive (the Operational Requirements Representation).

14.    The Operational Requirements Representation was knowingly false.

B.    The relief sought

15.    [Mr Tomvald] seeks the relief set out in the application filed with this Concise Statement.

29    Four claims are pleaded in the concise statement that correspond to the contraventions of ss 50 and 340 of the FW Act alleged at [1] of the originating application. It is convenient to reproduce each claim seriatum, followed by the competing submissions, consideration and resolution of each. It is not necessary to reproduce the pleadings as to the alleged accessorial liability of Mr Barnard, or the damage Mr Tomvald claims to have suffered.

First claim: alleged further contravention of cl 21(e) of the Enterprise Agreement

30    The concise statement pleads the following in respect of this claim:

Contravention of clause 21(e) of the Agreement

16.    The effect of clause 21(e), as declared by the Court on 17 October 2017, is that Toll is obliged to convert [Mr Tomvald]’s employment to permanent full-time employment on a like-for-like basis with his casual employment prior to 18 May 2016.

17.    Mr Tomvald’s start time as at 18 May 2016, and for many years previously, was 4am.

18.    Toll’s refusal to reinstate Mr Tomvald’s 4am start time was therefore a contravention of clause 21(e) of the Agreement.

Toll’s argument on the first claim of contravention of cl 21(e)

31    Toll submits that the primary and foundational claim made by Mr Tomvald in the first proceeding was that he was entitled to convert his employment to casual employment on a “like for like” basis under cl 21(e) of the Enterprise Agreement. Toll submits that the manner in which this claim was pleaded was important, relying in particular on the original and varied pleadings as between the statement of claim dated 3 August 2016 and the FASOC. The original and amended forms of those pleadings were as follows:

(1)    The statement of claim contained the following relevant paragraphs:

36.    On around 24 May 2016 Toll changed [Mr Tomvald]’s starting time from 4am to 5am.

37.    By changing [Mr Tomvald]’s starting time from 4am to 5am, Toll deprived [Mr Tomvald] of the benefit of an early morning shift loading.

…

48.    By refusing to convert [Mr Tomvald]’s employment to permanent employment working the same hours he worked during the twelve month prior to 18 May 2016, Toll contravened clause 21(e) of the Agreement and 12.6 of the Award.

…

53.    A declaration that Toll is obliged to convert [Mr Tomvald]’s employment to permanent employment working the same number and same pattern of hours he worked in the twelve months prior to 24 May 2016.

(2)    In the FASOC, [36] and [37] remained the same, but [48] and [53] were amended to read as follows:

48.    By refusing to convert [Mr Tomvald]’s employment to permanent employment working the same hours he worked during the twelve months prior to 18 May 2016, Toll Transport contravened clause 21(e) of the Agreement and 12.6 of the Award (as incorporated into the Agreement by clause 6(a) of the Agreement).

…

53.    A declaration that Toll Transport is obliged to convert [Mr Tomvald]’s employment to full-time permanent employment working the same number and same pattern of hours he worked in the twelve months prior to 24 May 2016.

32    In relation to the original and amended pleadings, Toll submits that the significance of the dates in [48] and [53] is revealed by [36] and [37]. Mr Tomvald removed from the terms of the declaration sought as to the entitlement to be converted to permanent employment a reference to the same number and same pattern of hours that he had worked in the 12 months prior to May 2016. However, it is common ground that he did not abandon that aspect of his case before Flick J. This becomes relevant when considering not just what was, but also what was not, ultimately sought and therefore the scope of the adjudication by Flick J. In considering Toll’s submissions, it may be seen that important context for Mr Tomvald seeking an entitlement, upon conversion to permanent full-time employment, to the “same number and same pattern of hours” was, as to pattern, a start time for Mr Tomvald of 4.00 am rather than 5.00 am.

33    Toll submits that Mr Tomvald’s claim as to Toll’s obligation under cl 21(e) of the Enterprise Agreement was resolved on the basis that the extent of the obligation to provide “like for like” permanent employment only extended to an obligation to provide permanent full-time employment of 38 hours per week. Toll particularly relies upon Flick J’s reasons at [96], where his Honour said:

To meet the requirements of cl 21(e) to convert his employment on a “like-for-like’” basis, Mr Tomvald was entitled to a permanent full-time position.

34    Toll situates the above statement by Flick J in the context of [71] of his Honour’s reasons, reproduced at [22] above. Toll submits that although an important aspect of Mr Tomvald’s claim was that he had an entitlement under cl 21(e) of the Enterprise Agreement to commence his shift at 4.00 am, this part of his claim did not succeed. Toll places particular reliance on the full text of [91] and [92] of Flick J’s reasons, and the reference by his Honour to the proposition that a “like for like” conversion would not entitle a casual worker to take with him all of those rights and entitlements which casual workers possess but which are not possessed by a permanent worker, and, conversely, that such a conversion would carry with it some new and additional benefits for a permanent worker that were not possessed by casual employees. His Honour relied upon well-established authority to decide that the phrase “like for like” was to be interpreted in accordance with other provisions of an industrial agreement, namely with a practical bent of mind rather than by way of rigid definition. His Honour had stated that this phrase was to be understood as requiring a comparison between the nature and extent of the work previously performed by a casual employee with that of a permanent employee, and that it was a phrase that necessarily had to be applied to the facts and circumstances of each individual employee and the workplace in which the work is performed.

35    Toll therefore submits that Mr Tomvald did not succeed in establishing an entitlement to a start time of 4.00 am. Rather, Toll submits that Flick J determined that Toll’s obligation under cl 21(e) was met by offering Mr Tomvald a permanent full-time position of at least 38 hours per week. Toll therefore submits that the dispute as to Mr Tomvald’s entitlement under cl 21(e) and the corresponding scope of the obligation on Toll were finally determined by Flick J and cannot now be revisited, noting that there has been no appeal from judgment in the first proceeding.

Mr Tomvald’s argument on first claim of contravention of cl 21(e)

36    Mr Tomvald submits that Toll relies only on part of [91] and on [92] of Flick J’s reasons, whereas it is more useful to consider all of the passages from [84] to [99]. Mr Tomvald submits that in those paragraphs, his Honour determined the primary controversy in his favour, including that he was entitled not only to a full-time position, but a full-time position on a “like for like” basis. Mr Tomvald submits that Toll is asking the Court to read those paragraphs as a finding that he was entitled to convert to a position of 38 hours per week and no more, and, in particular, a finding that he was not entitled to a 4.00 am start time. Mr Tomvald submits that those paragraphs provide no such thing. Instead, he characterise those paragraphs as including four relevant conclusions:

(1)    Mr Tomvald was entitled to a full-time permanent position, rather than a part-time permanent position, as Toll had argued;

(2)    the right to convert was not only a right to convert to a permanent position, but a right to convert on a “like for like” basis;

(3)    the position to which the employee converts is not confined to that which the employer is prepared to offer, but should be “like for like” with the prior casual employment; and

(4)    the nature of the position which is “like for like” requires a comparison of the work performed as a casual employee with that work as a permanent employee and, importantly, as applied to “the facts and circumstances of each individual employee and the workplace in which work is performed”.

37    With that understanding of Flick J’s reasons, Mr Tomvald submits that it is clear that the passages relied upon by Toll give no support to its contention. To the contrary, he submits that his Honour’s conclusion was that Mr Tomvald was entitled not only to a permanent position working 38 hours a week, but to work on a “like for like” basis.

38    Mr Tomvald submits that it was in this context that the Court, by consent, declared that Mr Tomvald’s entitlement pursuant to cl 21(e) of the Enterprise Agreement was that:

6.    Pursuant to clause 21(e) of the Agreement, the Respondent is obliged to convert [Mr Tomvald]’s employment to permanent full-time employment on a like-for-like basis with his casual employment prior to 18 May 2016. [emphasis added]

39    Mr Tomvald submits that the above declaration gave effect to the Court’s conclusion that he was entitled not only to “permanent full-time employment”, but to permanent full-time employment on a “like for like basis with his casual employment prior to 18 May 2016”.

40    Mr Tomvald submits that, on Toll’s case, the part of the declaration following the words “permanent full-time employment” is otiose, and the reference to the date of 18 May 2016 is meaningless. Mr Tomvald submits that the effect of the declaration is that the Court found that clause 21(e) of the Enterprise Agreement required Toll to convert his employment to permanent employment that was “like for like” with his casual employment before Toll’s cost reduction scheme was implemented. Relevantly for present purposes, he submits that that means permanent employment with a 4.00 am start time. He therefore submits that the first proceeding, far from standing in his way, is the foundation for the first of his four claims in the second proceeding.

41    Mr Tomvald further submits that the finding that Toll relies upon to the effect that its only obligation was to provide permanent full-time employment is not to be found in any of the paragraphs of Flick J’s judgment, and further submits that, in light of the evidence before this Court, it would have been the simplest of tasks for the Court to say that Toll’s obligation was only to provide 38 hours of work a week, but that the Court instead made clear that the right “is not merely a right to convert to a permanent position; it is also right to convert to a permanent position on a ‘like for like basis’.”

42    In relation to the specific arguments advanced by Toll in support of its IA, Mr Tomvald submits that the assertion that his claim concerning when he should be allowed to start work is an abuse of process depends upon the proposition that the Court previously denied his entitlement to a 4.00 am start time. He submits that that proposition is false, and that it follows that the claim of abuse of process, res judicata or estoppel must fail.

Consideration and resolution of first claim of contravention of cl 21(e)

43    Toll’s submissions on this topic should be accepted. While Mr Tomvald did not press for a more precise declaration seeking a right to a particular pattern of hours, and while he amended [53] in his FASOC so as to remove the additional words “working the same number and same pattern of hours he worked in the twelve months prior to 24 May 2016”, it seems plain enough that both aspects were part of what he was seeking as an outcome of the first proceeding. In those circumstances, it is difficult to read declaration 2 as being reflective of anything more than that which was expressly stated by Flick J at [71], reproduced above at [22], especially in the context of the reasoning that followed up to [99], discussed below. His Honour should be understood to have been concluding at [71] that:

(1)    cl 21(e) of the Enterprise Agreement conferred a right to convert to permanent full-time employment;

(2)    permanent full-time employment is employment for 38 hours per week;

(3)    Mr Tomvald sought to exercise his right to obtain employment for 38 hours per week;

(4)    the offer that was made by Toll offering him 30 hours per week fell short of offering him full-time employment; and

(5)    Mr Tomvald was therefore wrongfully denied the right to obtain employment for 38 hours per week.

44    Flick J then considered the bases for the conclusions that his Honour reached at [71], namely:

(1)    the source of the right to convert to full-time employment: [72]-[75];

(2)    the hours that had in fact been worked by Mr Tomvald: [76]-[79];

(3)    the meaning and content of the “like for like” entitlement: [80]-[99];

(4)    the contravention of s 50 of the FW Act: [100].

45    The discussion of the meaning and content of the “like for like” entitlement at [84] to [98] in particular provides the context for Flick J’s conclusion at [71] that permanent full-time employment “is” employment for 38 hours per week, which, as noted at [97] of his Honour’s reasons, was not met by offering Mr Tomvald four, five or six-hour shifts.

46    Conspicuous for its absence in any part of [80]-[99] is any reference to a start time of 4.00 am, or indeed anything at all on the topic of pattern of hours. That is not to be regarded as some oversight or accidental omission. Rather, pattern of hours is to be regarded as forming no part of Flick J’s conclusion as to Mr Tomvald’s conversion entitlement, or of Toll’s contravention.

47    Once the above interpretation is applied to the second proceeding, it is plain that Mr Tomvald is not now entitled to seek any relief upon the basis of any entitlement, based upon his conversion to permanent full-time employment with Toll, to any particular pattern of hours, let alone any entitlement upon that basis to commence work at 4.00 am. The seeking of such relief constitutes an attempt, although disavowed by Mr Tomvald, to re-litigate a matter that has been finally and conclusively determined adversely to him. It follows that [1(b)] of the originating application, but not the chapeau to [1], in the second proceeding must be struck out. As to the concise statement in the second proceeding, the following parts must be struck out:

(1)    [9(a)], but not the chapeau;

(2)    [18];

(3)    in [32], the “s” at the end of “contraventions” and at the end of “clauses”;

(4)    in [32], the phrase “and 21(e)”.

48    It is not apparent that there remains any work for [16] and [17] of the concise statement to do, and it may therefore be that those paragraphs should also be struck out as well. However, in case they serve some function as to any other aspect of the concise statement beyond reliance on a conversion entitlement to a start time of 4.00 am, they may remain for the time being, but will also be struck out unless Mr Tomvald can point to some other useful purpose in them remaining.

49    Similarly, it is not clear what [25] of the concise statement is referring to. If any part of that paragraph relies upon any pattern of hours aspect of his right to conversion, which he did not have, that must be read down to exclude that aspect. If that is the only aspect being referred to, then [25] too is liable to be struck out.

Second claim: alleged contravention of cl 17(b) of the Enterprise Agreement

50    The concise statement pleads the following:

Contravention of clause 17(b) of the Agreement

19.    Clause 17(b) of the Agreement requires that Toll to fully utilise full-time permanent employees before engaging part-time or casual workers.

20.    Toll has engaged part-time and casual workers to carry out work which Mr Tomvald is ready, willing and able to perform.

21.    Toll's engagement of part-time and casual workers ahead of Mr Tomvald is a contravention of clause 17(b) of the Agreement.

Toll’s argument on the second claim of contravention of cl 17(b)

51    Toll’s submissions describe Mr Tomvald’s adverse action claim in the first proceeding as having failed because Flick J, especially at [139], was satisfied that the reduction in working hours made available to Mr Tomvald was unrelated to him exercising any workplace right. That included changing his start time from 4.00 am to 5.00 am: see [192]-[193]. In that context, Toll characterises [19]-[21] of the concise statement as alleging that Toll breached cl 17(b) of the Enterprise Agreement to the extent that it utilised part-time or casual workers ahead of Mr Tomvald, based on this happening during the earlier period, and the corollary point that he had an entitlement, or should have been given a preference, to start his shifts at 4.00 am. Toll submits that unless such a basis exists, or unless there is a complaint that Mr Tomvald was not otherwise offered and engaged as a permanent full-time employee working at least 38 hours per week, which is not alleged in the concise statement, this claim falls away.

Mr Tomvald’s argument on the second claim of contravention of cl 17(b)

52    As to the other claims made by Toll, Mr Tomvald submits that Toll’s submissions do not make any serious attempt to explain how any estoppel might operate in respect of the other three claims in the second proceeding. He argues that Toll’s submissions simply assert that those claims are derivative in relying, as their foundation, on the claim concerning the contravention of cl 21(e). Mr Tomvald submits that while the merits of those claims are addressed, no explanation is given for the proposition that those claims are derivative. In any event, he submits that those merit submissions are unpersuasive and can be answered as follows.

53    In relation to his second claim in the second proceeding as to cl 17(b) of the Enterprise Agreement requiring that full-time employees be fully utilised before casual and part-time employees, Mr Tomvald submits that the substance of Toll’s argument is that its obligation to ensure that full-time employees are fully utilised before part-time and casual employees are used is met so long as Mr Tomvald is offered full-time hours. He submits that cl 17(b) is intended to avoid the very position in which he finds himself, where part-time employees earn more than he does. He further submits that it remains unclear how this claim could have been litigated or determined in the earlier proceedings. That is because it is an allegation of a breach of an obligation that attaches to permanent employees only. Mr Tomvald did not become a permanent employee until after the conclusion of the first proceeding. He argues that this claim is not predicated on any contention that he is entitled to a 4.00 am start. Whatever his legally mandated start time, Mr Tomvald submits that the question that arises from this claim is whether casual and part-time employees are being utilised ahead of him.

Consideration and resolution of second claim of contravention of cl 17(b)

54    On this aspect of the concise statement, Mr Tomvald has the better argument, confined to the present pleading point. Clause 17(b) of the Enterprise Agreement provides (emphasis in original):

17.    Toll commitment to job security

The Parties recognise that job security is an important issue for Employees. For its part, Toll commits:

…

(b)    subject to reasonable practical requirements, such as adequately servicing industry peaks, to promote job security through the full utilisation of full-time permanent Transport Workers/Owner-Drivers before the engagement of part-time Transport Workers/Owner-Drivers, or casual, labour hire or outside hire workers;

…

55    Whatever may be the history of Mr Tomvald’s claim, he does not in terms rely upon that history as the basis for this alleged breach. Rather, he necessarily alleges a breach following judgment in the first proceeding because the alleged breach is of his rights as a permanent employee, which he only obtained after and as a result of Flick J’s orders. He may or may not have a strong case for unlawful denial of preference, but that is a matter for evidence and not for pleading, although a claim brought without any proper foundation may have costs consequences despite s 570 of the FW Act. Toll’s application to have this claim struck out must accordingly fail.

Third claim: alleged adverse action contravening s 340 of the FW Act

56    The concise statement pleads the following:

Adverse action

22.    Mr Tomvald has been singled out and assigned a later start time than other freight handlers at Bungaribee.

23.    By directing that Mr Tomvald start later than other freight handlers, Toll has taken adverse action against Mr Tomvald by:

(a)    depriving Mr Tomvald of the benefit of an early morning shift loading;

(b)    minimising Mr Tomvald’s hours;

(c)    minimising Mr Tomvald’s earnings;

(d)    injuring Mr Tomvald in his employment; and

(e)    discriminating between Mr Tomvald and other employees.

24.    There is no intelligible operational or commercial rationale for the imposition of a requirement that Mr Tomvald start work later than other freight handlers. To the contrary, the use of part-time and casual employees ahead of Mr Tomvald is more expensive than using Mr Tomvald.

25.    The adverse action was taken for reasons which include the reasons that Mr Tomvald exercised workplace rights:

(a)    under the Agreement, namely his right to conversion; and

(b)    by initiating a proceeding under a workplace law, namely the Federal Court proceedings; and

(c)    by making a complaint in relation to his employment, namely, his complaints made in the Federal Court proceedings that Toll contravened the Agreement.

26.    Toll therefore contravened s340 of the FW Act.

Toll’s argument on the third claim of adverse action

57    Toll characterises Mr Tomvald’s adverse action claim in the second proceeding as alleging that he was singled out and assigned later start times compared to other freight handlers. Toll submits that it is significant that at [22] of the concise statement, the adverse action is confined to Mr Tomvald being assigned a later start time as compared to other freight handlers. This leads to the five forms of adverse action pleaded at [23]. Toll submits that the question of whether the alleged adverse action was taken is inextricably linked to the question of whether or not Mr Tomvald had an entitlement or expectation to commence work at 4.00 am, rather than at 5.00 am.

58    Toll submits that if there was no entitlement to the earlier start time and Mr Tomvald was otherwise undertaking work in the position of a permanent full-time employee working at least 38 hours per week, there is no basis for the claim that he was denied an entitlement that adversely affected him. In other words, there was no relevant deprivation or injury to him absent an entitlement. Toll further submits that, given that Flick J determined in favour of Toll that the change to Mr Tomvald’s start time as at May 2016 from 4.00 am to 5.00 am did not constitute adverse action, the attempt by Mr Tomvald to now recast the claim in circumstances where he has typically commenced shifts at 5.00 am since May 2016 involves re-agitating the same issue. Toll submits that even though circumstances since the earlier proceedings are sought to be relied upon, this does not alter the fact that there has not been any relevant change in the start time since May 2016. Toll relies upon the fact that Mr Tomvald also typically started work at 5.00 am during October 2017 and November 2017. Toll submits that the substantive reason for this, as in May 2016 and subsequently, was Toll’s operational requirements.

Mr Tomvald’s argument on the third claim of adverse action

59    In relation to the third claim in the second proceeding of adverse action, Mr Tomvald submits that Toll’s argument is that unless he has a legal right to a 4.00 am start, there can be no adverse action by denying him that start time. He submits that Toll’s argument that “there is no relevant deprivation or injury to [him] in his employment absent an entitlement” is without foundation. He submits that there is nothing in the FW Act or in authority to suggest that there can be no adverse action unless an employee is denied an extant legal right. If Toll has denied him a 4.00 am start time for a prohibited reason, he submits that there is unlawful adverse action whether or not he is otherwise entitled to start at that time.

60    Mr Tomvald concedes that, at first blush, a more defensible contention advanced on behalf of Toll is that the Court previously determined that the changed start time did not involve adverse action. However, he submits that that superficial merit falls away because the first proceeding concerned a change to the start time of casual employees in 2016, and thus the conclusions of the Court below as to the reasons for that change would not answer the question of whether a decision in 2018 to discriminate between him and every other permanent full-time employee was for a prohibited reason.

Consideration and resolution of third claim of adverse action

61    On this aspect of the concise statement, Mr Tomvald again has the better argument, again confined to the present pleading point. Once again, whatever may be the history of Mr Tomvald’s claim, he does not in terms rely upon that history as the basis for the allegation of adverse action, but, rather, relies upon what has happened since the first proceeding. As he correctly points out, adverse action is not confined to an extant legal right: see Construction, Forestry, Mining & Energy Union v Pilbara Iron Co (No 3) [2012] FCA 697 at [48] and the cases there cited. While Mr Tomvald may or may not have a strong case for this, it needs to be remembered that once he brings a sufficient case that he has been disadvantaged in a relevant way, that may engage the reverse onus provision in s 361 of the FW Act by which Toll must exclude a proscribed reason for the action. Once again, if it is ultimately found that this claim has been brought without any proper foundation, that may have costs consequences despite s 570 of the FW Act.

62    In light of the foregoing, Toll’s application to have this claim struck out must fail.

Fourth claim: alleged contravention of cl 9 of the Enterprise Agreement

63    The concise statement pleads the following:

Contravention of clause 9 of the Agreement

27.    The Operational Requirements Representation was knowingly false and intended to mislead Mr Tomvald.

28.    By making the Operational Requirements Representation Toll failed to deal with Mr Tomvald honestly, genuinely and in good faith.

29.    Toll thereby contravened clause 9 of the Agreement.

Toll’s argument on the fourth claim of contravention of cl 9

64    Toll submits that the substance of this claim is that Toll knowingly made a false representation that was intended to mislead Mr Tomvald as to any requirement to work at 4.00 am rather than at 5.00 am from Tuesdays to Fridays during the period between 6 and 28 November 2017, in contravention of cl 9 of the Enterprise Agreement. Toll submits that at the core of this claim is correspondence that was exchanged on 7 November 2017, which is referred to above. Toll submits that what this aspect of the claim fails to state is that the relevant communication occurred in the context of a dispute between the parties as to the scope of Toll’s obligation under cl 21(e) of the Enterprise Agreement, as well as the relevant outcome of the earlier proceedings, as reflected in Flick J’s judgment reasons, declarations and orders. Toll points to [12] of its concise statement in reply, by which it pleads:

In reply to paragraph 12 of the Statement, the First Respondent:

a.    Says that on 3 November 2017, [Mr Tomvald] asserted that the First Respondent was obliged to convert [Mr Tomvald] to a permanent full time position with a 4.00am starting time as per the Court’s orders;

Particulars

i.    Email from Mr Selig dated 3 November 2017.

b.    Says that on 7 November 2017, the First Respondent wrote to [Mr Tomvald] responding to the complaint raised in his email and confirmed its position that it had complied with the Court’s Order having regard to the Reasons for Judgment referred to paragraph 6 above;

Particulars

i.    Letter from Laycock Burke Castaldi to Mr Selig dated 3 November 2017.

c.    Says that, in explaining its position, the First Respondent further stated that, in determining [Mr Tomvald]’s hours of work, the First Respondent had regard to the operational requirements of the business, the working patterns and hours of employees working in similar positions in the relevant operational area and the provisions of the Agreement. The First Respondent also stated that, in the circumstances, it had no operational requirement for a freight handler, “such as [Mr Tomvald]”, to commence work at the Bungarribee facility at 4.00am on Tuesdays to Fridays inclusive;

d.    Admits that, in the 12 shifts during 6 to 28 November 2017 when [Mr Tomvald] commenced at 5am, he did not receive an early morning shift; and

e.    Otherwise denies the paragraph.

65    Toll submits that the alleged contravention also has its foundation in the asserted entitlement of Mr Tomvald to a start time of 4.00 am rather than 5.00 pm, in reliance on the outcome of the first proceeding and Flick J’s declarations and orders concerning the scope of Toll’s obligation under cl 21(e) of the Enterprise Agreement to convert the employment of Mr Tomvald to permanent full-time employment. As such, Toll again submits that this constitutes an abuse of process or an issue of res judicata or estoppel.

Mr Tomvald’s argument on the fourth claim of contravention of cl 9

66    As to his fourth claim in the second proceeding, Mr Tomvald characterises Toll’s submissions as suggesting that its representation was that it did not need him to begin work at 4.00 am. He submits that this is not an arguable view of the letter in which the representation was made, but that, in any event, no explanation is provided by Toll as to how the claim relates at all to the matters determined in the first proceeding, as alleged. Rather, Mr Tomvald submits, the fourth claim has no relation to the earlier proceedings, and it is therefore not reasonably arguable that it involves an abuse of process or a subject of res judicata or estoppel.

Consideration and resolution of fourth claim of contravention of cl 9

67    On this aspect of the concise statement, Mr Tomvald once again has the better argument, confined to the present pleading point. Clause 9 of the Enterprise Agreement provides (emphasis in original):

9.     Conduct of the Parties

(a)     The Parties agree that mutual respect and good faith is necessary to achieve an efficient and mutually beneficial relationship.

(b)     Further to the Parties’ aim of achieving an efficient and mutually beneficial relationship, the Parties agree to act in good faith in fulfilling their respective functions and obligations under this Agreement.

(c)     For the purposes of this Agreement, “good faith” requires the parties to:

(i)    deal with one another honestly and genuinely, and in a manner which maintains the integrity of this Agreement;

(ii)    take an honest and genuine approach to the resolution of any Disputes arising between them;

(iii)    refrain from capricious or unfair conduct that undermines the Agreement;

(iv)    give genuine consideration to, and respond to, the positions and proposals of other Parties in relation to any Disputes; and

(v)    disclose information (other than confidential or commercially sensitive information) which is relevant to any Dispute in a timely manner.

68    The problem for Toll’s argument is that, once again, whatever may have been the historical basis upon which Mr Tomvald was asserting a right to start at 4.00 am, his claim turns on the components of the LBC letter, and especially the parts of that letter at page 4 that described the lack of any operational requirement for Mr Tomvald to commence work at 4.00 am. Those parts of that letter were as follows:

We are instructed that the company currently has no operational requirement for a freight handler, such as Mr Tomvald, to commence work from the Bungarribee facility at 4:00am on Tuesdays to Fridays inclusive.

While there is currently a need for freight handlers to commence at 4:00am on Mondays due to freight arriving at the facility over the weekend, that situation does not arise on Tuesdays to Fridays inclusive as trucks are not always guaranteed to run to schedule so the start of the main shift may be delayed until 5:30am. As a result there is no relevant work for freight handlers to undertake between 4:00am and 5:00am at the Bungarribee facility on Tuesdays to Fridays inclusive.

We are further instructed that the only company employees at the Bungarribee facility who commence prior to 5:00am on Tuesdays to Fridays inclusive are the “set-up crew”, which includes supervisors, leading hands and yard tug drivers, and that all other permanent freight handlers commence at 5:00am. While there may be occasions where Mr Tomvald is required to commence work prior to 5:00am on a Tuesday, Wednesday, Thursday or Friday in the future, these occasions would be on an ad hoc basis depending on the operational requirements of company’s business.

It would be contrary to the Decision, and indeed the provisions of the Local Agreement, if Mr Tomvald was entitled to a permanent start time (and, on your construction of cl 21(e), shift hours) which guaranteed him penalty rates and extended hours in circumstances where this was not worked by other permanent full-time freight handlers and there was no work to be performed in the relevant operational area.

69    As a matter of pleading, rather than evidence, Mr Tomvald is entitled to bring a case that Toll’s representation of there being no operational requirement for a freight handler to start at 4.00 am from Tuesdays to Fridays was false and that this was, in effect, not the real reason why he was being denied a 4.00 am start time. It is entirely another matter as to whether or not this claim has any ultimate merit. As has been pointed out in relation to the other claims which Mr Tomvald is entitled to maintain, if this claim is, in fact, found to be without any proper foundation, that may result in a costs order, notwithstanding the terms of s 570 of the FW Act.

70    In light of the foregoing, Toll’s application to have this claim struck out must also fail.

Conclusion

71    Toll succeeds in its interlocutory application in relation to the striking out of the first claim in the second proceeding, but not in relation to the remaining three claims. While these reasons provide an indication of the orders that should be made, it is possible that some detail, including as to consequential effect, has been overlooked. The parties are therefore directed to furnish agreed or competing draft orders to give effect to these reasons within 14 days. As this appears to be a case in which a mediated solution is at least possible, counsel for the parties should be directed to confer on that topic and be in a position to explain to the Court why mediation should not be ordered to take place. The matter will be relisted for a case management hearing in 28 days to determine the future course of the proceedings, unless orders to that effect can be made before then.

Costs

72    As both parties have had a measure of success on the interlocutory application, it is appropriate that there be no order as to costs, even if such an order was possible in light of the terms of s 570 of the FW Act and the stage at which the interlocutory application was brought.

Associate:

Dated:    29 June 2018