FEDERAL COURT OF AUSTRALIA

Lacson v Australian Postal Corporation [2019] FCA 51

ORDER

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and summary

1    This appeal concerns the construction of s 52(2) of the Fair Work Act 2009 (Cth), together with the question whether the work performed by the appellant for the respondent at two different locations, at two different times, and in the performance of two different sets of duties should, for the purposes of the relevant enterprise agreements, be seen as one “employment” or, to more accurately reflect the way the appellant puts the argument, one “particular employment” for the purposes of s 52(2) of the FW Act.

2    The Federal Circuit Court held that it should not: see Lacson v Australian Postal Corporation [2018] FCCA 511.

3    In my opinion, for the reasons set out below, there was no error in the approach taken by the Federal Circuit Court, and the appeal should be dismissed.

Background

4    The findings I set out in this section of my reasons were not the subject of any real dispute between the parties. Indeed, there was little if any factual dispute in this appeal: the questions were legal ones, or questions of characterisation of undisputed facts.

5    Aside from a period in 1995 where he worked for Australia Post before returning to the Philippines, the appellant’s employment with Australia Post commenced in approximately 2001. He remains employed by Australia Post. The appellant was first employed on a fixed term contract on a casual basis in the position of Postal Delivery Officer at the Collingwood Post Office.

6    In the same year, the appellant then also secured a permanent part-time position as a Postal Sorting Officer, initially located at Australia Post’s Port Melbourne Business Centre, and since 2004 located at a new facility called the Melbourne Parcel Facility, where (also in 2004) he received a promotion to the positon of Postal Services Officer.

7    In February 2002, the appellant’s employment as a Postal Delivery Officer changed to a permanent part-time classification, but continued to involve working three hours per day Monday to Friday, 6.00 am to 9.00 am at Collingwood Post Office. It appears that the Postal Services Officer position was always relevantly classified as a permanent part-time position, after the appellant completed a training period.

8    His evidence to the Federal Circuit Court was that, at least since 2004 when he moved to the Melbourne Parcel Facility, he would go home to rest after his Postal Delivery Officer work at Collingwood, and in the afternoon would commence his Postal Services Officer work initially at 3.00 pm (and subsequently at 3.30 pm) for his four rostered hours of work. It was in this Postal Services Officer role that he commenced performing overtime: see [11] below.

9    The uncontested evidence was that at Melbourne Postal Facility the appellant’s tasks consisted largely of sorting bulk parcels, some of which was performed by the appellant driving a forklift. Overtime was performed in a different area of the Melbourne Postal Facility – but still generally involved forklift driving.

10    At the Collingwood Post Office, the appellant’s tasks largely consisted of sorting mail.

11    In 2010 the appellant spoke to supervisors in the dock area of the Melbourne Postal Facility, seeking extra hours. He obtained further hours there working from 7.30 pm and continuing for 3 hours and 21 minutes each night. This took him to a general finishing time of 11.21 pm each night, with a 30 minute break during this time. He would then start again at Collingwood Post Office the next morning at 6.00 am. It is relevant to one of the claims the appellant makes that this meant he had less than a ten hour break in between finishing at Melbourne Postal Facility and starting at Collingwood Post Office. It was common ground, and the Federal Circuit Court found, that overtime worked by the appellant was calculated on the total hours he worked as a Postal Services Officer, and that calculation did not include the hours he worked as a Postal Delivery Officer at Collingwood Post Office.

12    As the Federal Circuit Court found at [33] of its reasons, until 2010, the pay for both roles was recorded on a single payslip, provided by Australia Post each fortnight and the appellant performed both roles under the same personnel number. In August 2010, Australia Post changed its payroll system. Relevantly, employees like the appellant with what were described as “multiple jobs” retained their original personnel numbers but were given a new number for their second or subsequent “job”. This meant the appellant’s pay for both the Postal Delivery Officer and Postal Services Officer roles was no longer recorded on a single payslip, as previously had been the case. The appellant continued to receive a single annual PAYG payment summary relating to both roles.

13    A little later in 2010, on 28 October 2010, the Australia Post Fair Work Agreement 2010 commenced. I shall call this the 2010 Agreement. There is no dispute that the appellant’s work both as a Postal Delivery Officer and as a Postal Services Officer fell within the coverage of the 2010 Agreement.

14    On 29 July 2013 the Australia Post Fair Work Agreement 2013 commenced. I shall call that the 2013 Agreement. There is no dispute that the appellant’s work as a Postal Delivery Officer and Postal Services Officer also fell within the coverage of the 2013 Agreement.

15    Australia Post submitted the following as a summary of the appellant’s employment positions:

During the Claim Period, Mr Lacson had two part-time jobs. In one of them, he worked at a suburban post office sorting mail and performing associated duties. In that job, he was classified as a PDO and (as at October 2010) paid a wage rate of $21.63 per hour. In the other job, Mr Lacson worked at the MPF operating a forklift for the purpose of loading and unloading bulk mail and parcels. For that work he was classified as a PSO and (as at October 2010) paid a wage rate of $23.62 per hour.

16    The appellant did not dispute this summary, and I find it is accurate.

The appellant’s claim before the Federal Circuit Court and the Federal Circuit Court decision

17    The Federal Circuit Court summarised the appellant’s claims in its reasons, and since there is no dispute about their terms, it is not necessary to set them out in detail. The appellant claims entitlements to overtime, rest relief and meal allowance between 28 October 2010 and 15 October 2014, being the time at which the appellant stopped working extra hours in the Postal Services Officer position. It is not in dispute that he has not been paid these amounts. There is also no dispute the entitlements he claims exist under both the 2010 and 2013 Agreements: see clauses 14.10.1 (Overtime meal allowance); clauses 17.1.3 and 17.1.4 – (general overtime, applicable to part-time employees); and clause 17.4.1 (rest relief of 10 hours after overtime).

18    The question is whether those entitlements apply to the appellant, and that in turn depends on whether the two periods of work in which the appellant engaged for Australia Post each day should be viewed cumulatively, as one “particular employment” for the purposes of the agreement. If the two periods are not so viewed, the appellant accepts he has been paid correctly. Australia Post contends the two jobs performed by the appellant were separate and distinct permanent part-time positions, under separate and distinct contracts of employment, and therefore the entitlements claimed by the appellant are not payable.

19    The amounts claimed were significant, and are set out at [4] of the Federal Circuit Court reasons:

The applicant claims that as a result of the breaches by the respondent of the 2010 and 2013 Agreements he has suffered loss and damage in the sum of:

a)    $19,556.12 with respect to his overtime entitlement under the 2010 Agreement, less the overtime already paid in the sum of $17,906.61.

b)    $11,125.23 with respect to his overtime entitlement under the 2013 Agreement, less the overtime already paid in the sum of $12,088.70;

c)    $127,793.87 with respect to his rest relief overtime entitlement under the 2010 Agreement;

d)    $63,738.31 with respect to his rest relief after overtime entitlement under the 2013 Agreement;

e)    $5,002.00 with respect to his meal allowance entitlement under the 2010 Agreement; and

f)    $102.10 with respect to his meal allowance entitlement under the 2013 Agreement.

20    These were the amounts if the appellant was successful on all claims, and it can be seen some claims were qualified to avoid double payments. The Federal Circuit Court did not make findings in relation to the accuracy of the amounts claimed as entitlements, in light of its findings on the construction of s 52(2) of the FW Act. On the appeal, Australia Post agreed with the appellant’s submission that if the Court found the appellant was entitled to such payments, it would be appropriate for the parties to confer about the amounts claimed.

21    The appellant also claimed before the Federal Circuit Court that if the meaning of “employment” in s 52(2) of the FW Act was expanded to include a reference to more than one job, then it would give an employer the capacity to contract out of an industrial instrument, contrary to well established principle. The appellant relied on Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; 121 IR 250 at [29]-[32].

22    The Federal Circuit Court rejected the appellant’s claims, and his argument about contracting out.

23    At a factual level, at [56]-[58] of its reasons, the Federal Circuit Court made the following findings as the basis for its legal conclusion:

In the present case the applicant has two separate and distinct part-time positions which were obtained at different times.

In this case the facts support a finding that Mr Lacson was employed as a PDO at the Collingwood Post Office and the work actually performed by him at that time was as PDO and described in the enterprise agreement classification as a Postal Delivery Officer. His hourly pay rate as set out in his pay advice for that position was $21.63 per hour as at October 2010. He had a specific personnel number for that position (exhibit RVL 13 to his affidavit of 12 May 2017).

In relation to the Postal Services Officer position, that position is set out in the classification clause in those terms and had its own personnel number and a different hourly wage rate ($23.62 as at October 2010).

24     Its central reasoning on s 52(2) of the FW Act appears at [60]:

In my view, the wording of s.52(2) of the Act contemplates that an enterprise agreement may apply to particular employment and does not preclude an enterprise agreement applying to one particular employment and to a different employment undertaken by the same employee with the same employer. I am fortified in that view given that the High Court embraced the meaning of “particular employment” as set out in the relevant part of the explanatory memorandum. In particular I refer to the second sentence of clause 205 in the explanatory memorandum which stated:

[i]f a national system employee has more than one job, each job is treated separately in determining the effect of an award or agreement on the employees’ entitlements in relation to each job.

25    At [62] it made the following finding:

In the Moreton Bay College decision, argument was directed to the particular awards that governed each part of the works performed by the employee. Each of the roles of groundsmen and caretaker were covered by the same certified agreement. In the present matter, no argument has been directed at whether separate awards applied to the employment but I presume that they do not. However, it does not mean that that Mr Lacson did not enter into two separate and distinct contracts of employment at different times, performing different work at different places with the same employer. In those circumstances, I do not understand why s.52(2) of the Act should not apply to allow the certified agreement to apply separately to each separate employment. It is apparent that an important feature of each of the Tramways case, Moreton Bay College case and Michaelmas v Broderick were that the types of work being performed by the particular employee concerned was separate and distinct and the contracts that led to that work being performed were separate and distinct.

26    Then at [66], the Federal Circuit Court added by way of a conclusion (rejecting the appellant’s “contracting out” argument) that:

…there are in fact two employments which are separate and distinct from one another and it was entitled to do this by reason of S.52(2) of the Act.

27    There was initially a dispute between the parties about whether the Federal Circuit Court’s findings should be understood as including a finding that the appellant entered into two separate and distinct contracts of employment. Australia Post submits the Federal Circuit Court’s reasons should be understood as encompassing a finding that:

Mr Lacson entered into two separate and distinct contracts of employment at different times, performing different work at different places with the same employer

28    Although initially resisted, it appeared that during oral argument counsel for the appellant accepted that the Federal Circuit Court did find there were two contracts of employment, and he challenges that finding on the basis that it was not open on a proper construction of s 52(2) of the FW Act.

The appellant’s grounds of appeal

29    There are six grounds of appeal, although it is fair to say there is some overlap, and some of the grounds are somewhat secondary to the principal argument.

30    The grounds are as follows:

1.     The Honourable Circuit Court Judge erred in interpreting s 52(2) of the Fair Work Act (FW Act) as allowing the Respondent to treat the Appellant’s hours worked at the Collingwood Post Office as separate and distinct from his hours worked at the Bulk Handling Facility in circumstances where all work fell within the scope of a single enterprise agreement at any given time.

2.     The Honourable Circuit Court Judge erred in finding that the Appellant’s hours of work at the Collingwood Post Office were not to be considered cumulatively with his hours worked at the Bulk Handling Facility for the purpose of:

a.    The Australia Post Fair Work Agreement 2010 (2010 Agreement); and

   b.     The Australia Post Fair Work Agreement 2013 (2013 Agreement).

3.     The Honourable Circuit Court Judge erred in finding that the Appellant’s work at the Collingwood Post Office and at the Melbourne Parcel Facility each amounted to a distinct “particular employment” for the purpose of s 52(2) of the FW Act.

4.     The Honourable Circuit Court Judge erred in finding that by treating the Appellant’s hours of work at the Collingwood Post Office as separate and distinct from his hours worked at the Bulk Handling Facility for the purpose of the applicable enterprise agreement, the Respondent was not purporting to contract out of the terms of the applicable enterprise agreement.

5.     The Honourable Circuit Court Judge erred in failing to determine whether the Respondent failed to pay the Appellant his full entitlements under the:

a.    2010 Agreement; and

b.    2013 Agreement.

6.     The Honourable Circuit Court Judge erred in finding that counsel for the Appellant conceded that if the court found there were two contracts of employment, then s 52(2) of the FW Act was fatal to the Appellant’s claim.

31    I consider grounds 1–3 raise the same issue, although they are differently expressed. Each is directed at a component of the argument before the Federal Circuit Court, but whichever way they are approached, they all appear to lead back to the construction of s 52(2) of the FW Act. Ground 5 likewise is another way of expressing the same error.

32    In oral argument on the appeal, counsel for the appellant accepted that the appellant’s argument hinged on the proper construction of s 52(2).

33    None of the grounds in substance challenge the fact finding of the Federal Circuit Court, although they are expressed as the Federal Circuit Court having “erred in finding”. The challenge is to the conclusion, by application of s 52(2), as construed by the Federal Circuit Court, to the facts.

34    Ground 4 is an argument which flows from the appellant’s contended construction of s 52(2). In other words, the appellant contends that one of the consequences of accepting Australia Post’s (and the Federal Circuit Court’s) construction of s 52(2) is that it has the effect of allowing an employer such as Australia Post to “contract out” of its obligations under the 2010 and 2013 enterprise agreements. In that sense it would appear to be a form of consequentialist reasoning contributing to the appellant’s construction of s 52(2). That is because, if properly construed, s 52(2) authorises what the Federal Circuit Court and Australia Post contend it authorises, then the provision can be seen as impliedly authorising conduct by employers that the appellant describes as “contracting out”.

35    Thus, the real question on the appeal is whether the appellant is correct in his construction of s 52(2), and of its application (on that construction) to the circumstances of his employment with Australia Post.

36    Ground 6 raises a separate point, but not one which could be determinative of the appeal. I address it briefly at [115] below.

37    The appellant seeks only declaratory relief on the appeal (as well as orders setting aside the Federal Circuit Court orders) although, as noted above, counsel for the appellant accepted it would be preferable to have any amounts payable to the appellant quantified by agreement of the parties.

Resolution of the appeal

Grounds 1-5

38    By s 50 of the FW Act a person must not contravene an enterprise agreement. By s 51, no obligations and entitlements arise (and therefore no contraventions can occur) unless an enterprise agreement “applies” to both an employer and an employee.

39    Section 52 is critical to the appellant’s contentions. It provides:

52 When an enterprise agreement applies to an employer, employee or employee organisation

When an enterprise agreement applies to an employee, employer or organisation

(1)    An enterprise agreement applies to an employee, employer or employee organisation if:

    (a)    the agreement is in operation; and

(b)    the agreement covers the employee, employer or organisation; and

(c)    no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.

Enterprise agreements apply to employees in relation to particular employment

(2)     A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.

Section 52(2)

40    As I have noted above, contextually it is important to understand that by s 51, unless an enterprise agreement “applies” to an employee, the person has no entitlements under it, and an employer assumes no obligations in relation to that employee under an agreement.

41    The purpose of s 52 is to prescribe when an enterprise agreement applies to a person: that purpose is fulfilled principally by the terms of s 51(1). The requirements of s 52(1)(a) and (c) are unremarkable, s 52(1)(b) must be examined more closely.

42    Section 53 supplies a statutory description of when an enterprise agreement “covers” an employee and provides:

53    When an enterprise agreement covers an employer, employee or employee organisation

Employees and employers

(1)    An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.

Employee organisations

  (2)    An enterprise agreement covers an employee organisation:

(a)    for an enterprise agreement that is not a greenfields agreement—if the FWC has noted in its decision to approve the agreement that the agreement covers the organisation (see subsection 201(2)); or

(b)    for a greenfields agreement—if the agreement is made by the organisation.

Effect of provisions of this Act, FWC orders and court orders on coverage

(3)    An enterprise agreement also covers an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement covers the employee, employer or organisation:

(a)    a provision of this Act or of the Registered Organisations Act;

(b)    an FWC order made under a provision of this Act;

(c)    an order of a court.

(4)    Despite subsections (1), (2) and (3), an enterprise agreement does not cover an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement does not cover the employee, employer or organisation:

(a)    another provision of this Act;

(b)    an FWC order made under another provision of this Act;

(c)    an order of a court.

Enterprise agreements that have ceased to operate

(5)    Despite subsections (1), (2) and (3), an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation.

Enterprise agreements cover employees in relation to particular employment

(6)    A reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment.

43    The appellant did not dispute that the 2010 and 2013 Agreements “covered” him: indeed, that was a core part of his case to secure the additional entitlements.

44    It was common ground that the way s 53(1) applied to the appellant was first, by reference to cl 2.1.1 of the 2010 Agreement (the 2013 Agreement being materially identical):

2.1     Coverage of the Agreement

2.1.1     This Agreement is made under Part 2-4 of the FW Act and covers:

(a)     Australia Post;

(b)     all employees of Australia Post employed in classifications set out in Attachment A; and

(c)     Unions as defined in clause 47.14.

45    One then turns to Attachment A (again taking the 2010 Agreement – they are materially the same on this issue also), where there were classification entries for:

(1)    Postal Delivery Officer (with no distinct grade levels); and

(2)    Postal Services officer (with no distinct grade levels).

46    In this sense, using the terms of s 53(1), each of the 2010 and 2013 Agreements are “expressed to cover” the appellant.

47    At [15] of his written submissions the appellant referred to a passage at [25] of the High Court’s decision in Aldi Foods Pty Ltd v Shop, Distributive and Allied Employees Association [2017] HCA 53; 92 ALJR 33. Paragraph [25] of the High Court’s reasons states:

…It is evident from these provisions of the Act that an enterprise agreement may “cover” an employee even though it does not yet “apply” to that employee in the sense of imposing obligations on the employee and the employer

48    The important word here is “yet”. Aldi concerned an enterprise agreement for employment at an Aldi distribution centre which was still under construction and at which trading had not yet commenced, and one of the issues in the case was whether the only way to create an agreement that was binding on employees and gave employees entitlements was under the “greenfields” provisions in s 53; or whether what Aldi had done was also permissible under the FW Act. The present situation is quite different: in the appellant’s situation, the “application” and “coverage” of the award are co-extensive. In that sense, the High Court’s statement at [25] speaks to a different situation and does not assist the appellant. That is made clear by [26] of the plurality judgment:

Section 52 of the Act deals with when an agreement “applies” to an employee. Importantly, ss 52 and 53 expressly indicate that an enterprise agreement may cover an employee when it is not in operation, but it can only apply to an employee when it is in operation.

49    In Aldi at [30] the Court described the concept of “coverage” of an employee by an enterprise agreement as meaning:

..the agreement provid[es] terms and conditions for the job performed by, or to be performed by, the employee.

(emphasis added)

50    The appellant also relied on this passage. It would appear that the Court’s reference to the “job performed” may be a reference to the classifications in an enterprise agreement, when read with a clause such as cl 2.1.1 of the 2010 Agreement.

51    Thus, relevantly for the present issue (and perhaps differently from Aldi) the principal question asked by the terms of s 52(1) in order to decide whether the enterprise agreement “applies” to a person is whether the agreement “covers” a person and therefore, applies to that person (subject to the other two requirements in s 52(1)).

52    That question having been asked and answered by the terms of s 52(1), what then is the work to do for s 52(2)?

53    The answer to this, the key question on the appeal, requires consideration of the circumstances in which the FW Act uses the phrase “particular employment”. In part that is because the text of s 52(2) expressly seeks to apply the qualification within it to “references in this Act” as a whole and is used in several other places in the Act. It is also used, for example, in s 53(6), set out above, which was the provision considered in Aldi, and the meaning given to it by the High Court poses some difficulty for the appellant’s arguments. That is why he sought to distinguish Aldi. I return to this issue below.

54    The qualification, as it appears in s 53(6) is in the following form:

A reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment.

55    Section 47 also contains the phrase, in the context of prescribing when a modern award “applies” to a person: in that sense, it correlates to s 52, but in relation to modern awards:

47    When a modern award applies to an employer, employee, organisation or outworker entity

When a modern award applies to an employee, employer, organisation or outworker entity

(1)    A modern award applies to an employee, employer, organisation or outworker entity if:

(a)    the modern award covers the employee, employer, organisation or outworker entity; and

(b)    the modern award is in operation; and

(c)    no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.

Note 1:     Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.

Note 2:     In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

Modern awards do not apply to high income employees

(2)    However, a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee.

Modern awards apply to employees in relation to particular employment

(3)    A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.

56    Section 48 is in similar terms, but deals with coverage – these two provisions are, in many parts, materially identical in text and purpose to ss 53 and 52.

57    A similar phrase is used in s 57, dealing with modern awards, and which provides:

57    Interaction between modern awards and enterprise agreements

(1)    A modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.

(2)    If a modern award does not apply to an employee in relation to particular employment because of subsection (1), the award does not apply to an employer, or an employee organisation, in relation to the employee.

58    As the notes to s 47 explain, s 57 gives priority, or precedence, to an enterprise agreement that “applies” to a person, over a modern award which “applies”. However, it does so in relation to a “particular employment”: the adjective is necessary so that the overlap can be precisely identified and so precedence can be given to the enterprise agreement.

59    Section 58 involves another mechanism of sorting out which industrial instrument should apply to a person, and does so (like s 278 below) by using the two phrases “particular employment” and “same employment”:

58    Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1)    Only one enterprise agreement can apply to an employee at a particular time.

General rule—later agreement does not apply until earlier agreement passes its nominal expiry date

  (2)    If:

(a)    an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and

(b)    another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and

(c)    subsection (3) (which deals with a single‑enterprise agreement replacing a multi‑enterprise agreement) does not apply;

then:

  (d)    if the earlier agreement has not passed its nominal expiry date:

(i)    the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and

(ii)    the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

(e)    if the earlier agreement has passed its nominal expiry date—the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.

Special rule—single‑enterprise agreement replaces multi‑enterprise agreement

  (3)    Despite subsection (2), if:

(a)    a multi‑enterprise agreement applies to an employee in relation to particular employment; and

(b)    a single‑enterprise agreement that covers the employee in relation to the same employment comes into operation;

the multi‑enterprise agreement ceases to apply to the employee in relation to that employment when the single‑enterprise agreement comes into operation, and can never so apply again.

60    Section 278 uses the phrase in dealing with the interaction between a workplace determination (see generally Part 2-5) and an enterprise agreement:

278    Interaction of a workplace determination with enterprise agreements etc.

Interaction with an enterprise agreement

(1)    If:

(a)    a workplace determination applies to an employee in relation to particular employment; and

(b)    an enterprise agreement that covers the employee in relation to the same employment comes into operation;

the determination ceases to apply to the employee in relation to that employment, and can never so apply again.

Interaction with another workplace determination

(2)    If:

(a)    a workplace determination (the earlier determination) applies to an employee in relation to particular employment; and

(b)    another workplace determination (the later determination) that covers the employee in relation to the same employment comes into operation;

the earlier determination ceases to apply to the employee in relation to that employment when the later determination comes into operation, and can never so apply again.

61    This provision is helpful in understanding what Parliament intends the phrase to mean, because it contrasts “particular employment” with “the same employment”. This is consistent with the meaning I conclude below should be given to the phrase in s 52(2): namely, that the adjective “particular” is intended to allow a type of employment, a position, the kind of work, or a “job” to be identified. In other words, that “particular employment” is intended to comprehend all of the alternative or cumulative descriptions in s 256A.

62    I note also s 277(5) which is in almost identical terms to s 52(2) and s 53(6):

Workplace determinations cover employees in relation to particular employment

(5)    A reference in this Act to a workplace determination covering an employee is a reference to the determination covering the employee in relation to particular employment.

63    Section 256A is also of relevance. It provides:

256A    How employees, employers and employee organisations are to be described

(1)    This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by an enterprise agreement or other instrument.

(2)    The employees may be specified by class or by name.

(3)    The employers and employee organisations must be specified by name.

(4)    Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to one or more of the following:

(a)    a particular industry or part of an industry;

(b)    a particular kind of work;

(c)    a particular type of employment;

(d)    a particular classification, job level or grade.

64    While the phrase here is “particular type of employment”, this is a provision about coverage and how industrial instruments are to describe when and whether a person is “covered” by the instrument. It is clear that if not identified by name, employees are to be identified by class and subsection (4) sets out four ways (cumulatively or alternatively) the class may be described. A distinction is made between “kind of work” and “type of employment”. I take the former to refer to a description of a class where the activity or activities performed by the employee form part of the classification (eg, “forklift driving”). The latter refers, in my opinion to a description of a position or job, and the description “Postal Delivery Officer” and “Postal Services Officer” fall within this. Looking back to the other terms of Attachment A, the grades or levels for some of the other jobs in Attachment A (eg Senior Postal Services Officer – Grade 1, Grade 2, etc) combine (c) and (d).

65    Section 281A is in similar terms to s 256A and should be similarly construed.

66    There are provisions such as s 195, which use the phrase “particular position” in a context where they also use the term “employment” (with my underlining):

195    Meaning of discriminatory term

Discriminatory term

(1)    A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Certain terms are not discriminatory terms

(2)    A term of an enterprise agreement does not discriminate against an employee:

(a)    if the reason for the discrimination is the inherent requirements of the particular position concerned; or

(b)    merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

(i)    in good faith; and

(ii)    to avoid injury to the religious susceptibilities of adherents of that religion or creed.

67    Here, “employment” appears to mean or refer to the act of employing – that is, the act of contracting to employ a person, or the contract of employment, whereas, the “particular position” refers to the job the person performs as a result of that contract. I consider a provision such as s 195 needs to be construed differently to provisions such as ss 52(2) and 53(6). There are other provisions which also appear to give “employment” this different meaning: see eg s 384.

68    It is tolerably clear that there is a pattern within the FW Act to the use of the phrase “particular employment”. While the use of the word “employment” rather than “work” or “position” may suggest a focus on the contract of employment, in my opinion the purpose of the adjectival phrase “particular employment” is to enable identification, with sufficient precision, of what the job or position of an employee is at any given time: that is, what is the position description or classification given to the work they are performing.

69    Looking at its text and purpose, in the context of the FW Act as a whole and the other circumstances in which that phrase is used, in my opinion the work done by s 52(2) therefore is to confine the circumstances in which an enterprise agreement will “apply” to an employee to those circumstances where the employee is occupying a particular position or a particular job, and the contents of that enterprise agreement are intended to apply to the employee while she or he occupies that position or job, creating entitlements and obligations in the employee and the employer in accordance with the enterprise agreement. I accept Australia Post’s submission that the function of s 52(2) is to place a further limit on the circumstances in which an enterprise agreement will “apply” to an employee.

70    The conclusion I have reached as a matter of a process of construction is consistent with the construction given to the identically worded provision (in a material sense) in s 53(6) by the High Court in Aldi. The key passages in Aldi for the purposes of the issue on this appeal are [24]-[34]. As I have noted, the plurality (with whom Gageler J relevantly agreed) expressly considered the terms of s 52(1), because in these passages the plurality was emphasising that there can be circumstances where an enterprise agreement may “cover” an employee but not “apply” to that employee. They did not however expressly consider the terms of s 52(2), because the issues in Aldi were more concerned with coverage than application. At [30]-[31], the plurality said:

Because an employee may be covered by more than one agreement at one time, s 58(1) of the Act provides that only one enterprise agreement can apply to an employee at a particular time. That is because only one set of rights and obligations can be in operation in relation to the work actually performed by the employee at that time in relation to particular employment. Given the terms of ss 52 and 53, it is apparent that an employee may be covered by an agreement that applies to him or her, and by an agreement that does not, at that time, apply to him or her. Furthermore, an employee may be covered by more than one agreement at any one time. To speak of an employee being covered by an agreement is to speak of the agreement providing terms and conditions for the job performed by, or to be performed by, the employee.

In this context, the natural meaning of the reference in s 53(6) to “particular employment” of an employee is to the description of the employee’s job in the agreement. In this regard, the terms of cl 5 of the Agreement refer to the job descriptions of employees whose employment the Agreement will regulate when it comes into operation. It is a natural and ordinary use of language to speak of the Agreement as covering these employees.

71    Paragraph [75] is also important:

In the course of argument in this Court it was suggested on behalf of the SDA that s 53(6) of the Act, in speaking of “the agreement covering the employee in relation to particular employment”, is speaking exclusively of a case where the employee is actually performing work under the agreement at that time. That understanding of s 53(6) requires one to read into the provision words that are not there. Read without the SDA’s proposed gloss, it is apparent that the provision is simply referring to the employee’s job as described in the agreement rather than to the actual performance by the employee of the tasks involved in that job. This understanding accords with the Explanatory Memorandum for the Bill, which treats “particular employment” as synonymous with a “job”.

72    In substance then, the application of an enterprise agreement (and thus the entitlements and obligations arising) will operate on the job of an employee, as described in the enterprise agreement, not the actual performance of the tasks involved in that job. I do not see any other way to read the plurality reasons in Aldi.

73    Bromberg J applied this aspect of Aldi in Choppair Helicopters Pty Ltd v Bobridge (No 2) [2018] FCA 700. This was a decision following up on Bromberg J’s findings on an appeal from the Federal Circuit Court. Choppair (No 2) concerned the respondent’s entitlement to accident pay under the Air Pilots Award 2010. Having found that the respondent was an employee at the time of her injury (when the claim for accident pay was said to arise), Bromberg J set out the purpose of accident pay at [20]:

The general purpose of a provision for accident make-up pay is to compensate an employee for the difference between what the employee receives by way of workers’ compensation and the income that would have been received by the employee if the employee had not been injured and had attended work.

74    His Honour found (at [24]) that the accident make-up pay entitlement was dependent on and supplementary to the workers’ compensation entitlement of the employee, and was not intended to be dependent on the continuation of a person’s employment (at [26]). Relevantly, his Honour then considered an argument by Choppair that the legislative context of the FW Act about awards “covering” and “applying to” an employee, and (relying on s 48(5)) – which I refer to at [56] above – provided that once an employee’s “particular employment” ends, a modern award is no longer capable of applying to an employee.

75    It was in this context that Bromberg J held (at [35]) that:

The “particular employment” referred to in s 47(3) of the FW Act is simply a reference to the job held by the employee: Aldi Foods Pty Ltd v Shop, Distributive and Allied Employees Association [2017] HCA 53 at [75] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ). The basis for the emphasis given by Choppair’s submission to s 47(3) is not clear. Ms Bobridge had a “particular employment”, being her employment by Choppair on 2 November 2013 as a helicopter pilot. The primary judge’s finding that the AP Award applied to that employment has not been disturbed on the appeal. Section 46(2) did not prevent the AP Award from conferring upon Ms Bobridge an entitlement to accident make-up pay arising out of that particular employment. The construction of cl 22 which I prefer, in which the entitlement accrues at the date of injury, is not impeded in its operation by s 46(2).

76    His Honour concluded (at [37]) that there was an obligation imposed by the award on Choppair to pay accident pay from the date of the injury, including “where the particular employment which gave rise to the entitlement has ended”.

77    Although obviously in quite a different context, the approach of Bromberg J to the construction of “particular employment” in s 48(5) is consistent with the one I have adopted, and is plainly drawn from Aldi. His Honour did not see any need to distinguish Aldi because it concerned s 53(6) and his Honour was dealing with s 48(5), where the text was relevantly identical.

78    In a similar way, I see no basis to distinguish between the construction of that phrase in s 53(6) and its construction in s 52(2).

79    As I understood the arguments, the appellant sought to distinguish Aldi (and therefore also Choppair) by contending:

(1)    Section 52(2) concerns “application” of an enterprise agreement and s 53(6) concerns “coverage”; and

(2)    Aldi related to employees with different jobs covered by different agreements with the same employer, not an employee with two jobs with the same employer under one enterprise agreement.

80    These two differences can be accepted. However, I do not see how of themselves they affect what I consider to be the proper construction of s 52(2). As I have said above, the purpose of subsection (2) of s 52 is to place a further qualification on how an enterprise agreement “applies” to an employee so as to create entitlements in the employee, and obligations in the employer.

81    In reply submissions, and in answer to questions asked of him, counsel for the appellant submitted that in a case like that of the appellant, the reality is that s 52(2) has no work to do. Its work, he submitted, was in ensuring compliance with s 58 of the FW Act: namely, that only one agreement can “apply” to an employee at any given time. That, he submitted, is the work that the adjective “particular” does in s 52(2).

82    Although this has some force, I do not consider it fits comfortably with the use of the phrase “particular employment” throughout the FW Act, as I have set out above. That context demonstrates that the adjective is indeed directed at specifying the kind of job to which the enterprise agreement will apply. Where the circumstances of an employee and employer fall within s 52(1), then s 52(2) further qualifies the “application” of an enterprise agreement, to the specific position or job the employee is performing. So long as there is only one enterprise agreement which applies to the employee at a given time (that being the effect of s 58), in my opinion there is no prohibition in the FW Act, or in the common law, to there being two separate contractual arrangements between an employee and an employer, and s 52(2) recognises this by qualifying the way an enterprise agreement can “apply” to restrict its application to the “particular employment” of a worker.

83    The appellant also submitted that the uniqueness of the current circumstances should lead the Court to favour the approach for which he contended: namely that the appellant’s two “jobs” (even if Aldi is applied to that extent) should be considered cumulatively for the purposes of his entitlements under the enterprise agreements. The appellant submitted:

In its submissions in support of grounds 1, 3 and 6, the Respondent provides by way of a footnote that “an employee working for one employer in two separate jobs, and pursuant to two separate contracts of employment of service is, although unusual, known to the common law”. This proposition may be accepted, so far as it goes. However, prior to the decision below, it appears that no Australian court or tribunal had ever found that an employee working for one employer in two different jobs/roles/ employment contracts under one industrial instrument should have their work treated as separate and distinct for the purpose of that industrial instrument, absent a specific clause in the relevant instrument to provide for such.

84    Australia Post did not submit this precise issue had been decided before. Without an exhaustive search it is not possible to know, nor does it matter. The appellant’s argument is, with respect, circular. The treatment of the appellant’s terms and conditions of employment as “separate and distinct” (to use the appellant’s counsel’s language) is a consequence of the facts (about the existence of two contracts of employment) and the construction of s 52(2): that outcome cannot be used to inform what the outcome should be.

The multi-hiring argument

85    This was considered in some detail by the Federal Circuit Court and was a major plank of the appellant’s argument on appeal.

86    As with some of the appellant’s other arguments, this aspect rested on the premise that no previous decision adopted the approach taken by the Federal Circuit Court. That is not a reason for overturning a decision: the question is whether the basis for the orders was erroneous, not unusual.

87    The appellant contended that the only situation in which a single employee might find herself or himself regulated in her or his terms of employment and entitlements by different aspects of a single industrial instrument was if that instrument had a multi-hiring clause. The appellant used the example of cl 19.3(c) of the Alpine Resorts Award 2010. It is important to place that clause in context and reproduce both cl 19.2 and 19.3:

19.2     Dual-role employment

(a)     Due to the unique nature of most positions under this award, in that they are generally only available during that part of the year when alpine lifting is being provided, employees may be offered dual-role employment (where operational requirements allow) in which the employee may have two distinct roles.

(b)     In these circumstances any offer of employment will set out the terms and conditions for each role and these will be mutually agreed between the two parties prior to the commencement of this type of employment.

(c)     Where clause 19.2 applies, clause 19.1 does not apply.

19.3    Multi-hiring arrangement

(a)    As an alternative, or in addition to, dual-role employment, an employee may by agreement be engaged on a multi-hiring arrangement.

(b)     If an employer and an employee enter into a multi-hiring arrangement, the parties must agree on the primary role of the employee.

(c)     The employer may then offer the employee, and the employee may undertake, a non-primary role (or roles) in any level or classification within Schedule B—Classification Definitions that they are qualified for, provided that:

(i)    any non-primary role is to be undertaken, and paid for, on a casual basis; and

(ii)    any hours worked by an employee in a non-primary role do not count toward ordinary hours or overtime in the employee's primary role.

[19.3(c)(iii) renumbered as 19.3(d) and substituted by PR994425 from 01Jan10]

(d)    Where clause 19.3 applies, clause 19.1 does not apply.

88    The substance of the arrangements for which this award provides, recognising that the work of employees will be seasonal, is that there is a primary job and a secondary job. Clause 19.3(c) makes it clear that there is a hierarchy. In my opinion the way these clauses are framed, and considering their purposes, in any given situation is it highly likely there will only be one contract of employment which, in accordance with the award, contemplates that the employee will perform two different jobs – a primary job during the ski season, and a secondary job during the off season. Not the least that is because when a person is first offered employment, it will be obvious that the job is a seasonal one. The parties may then decide to contract on the basis that an employee works only in the seasonal job, or has a secondary job in the off season with the same employer.

89    I do not see how the existence of an arrangement such as that in the Alpine Resorts Award 2010 affects the proper characterisation of the appellant’s position. It is simply a different situation altogether.

90    The appellant relied on the decision of the Queensland Industrial Relations Commission in Queensland Independent Education Union of Employees v Moreton Bay College, [2002] QIRComm 175 for the proposition that there are “strong policy reasons” why the only situation in which a single employee under one industrial instrument could have two sets of entitlements would be if there was a multi-hiring clause. In that decision, Commissioner Asbury observed that an employer and employee are not precluded from entering into two separate contracts of employment provided the work under each is regulated by a different industrial instrument, otherwise an employer might have “considerable difficulty” in establishing that engaging a person to do two different jobs under a single instrument was not a device to avoid paying overtime.

91    First, this was a situation where the union had submitted there was only one contact of employment and the Commissioner rejected this, finding there were two – one relating to the job of Caretaker, one relating to the job of Groundsperson. The Commissioner also rejected the argument that the worker’s hours should be added together for the purposes of penalty payments (that is, the kind of argument being put in this appeal). The Commissioner said (on p 8 of the decision):

I add that this decision should not be seen as authority for the proposition that employers have carte blanche to put in place multiple contracts of employment with an employee. Where multiple contracts cover work which is regulated by a single Award, such arrangements are arguably not permissible absent a “multi-hiring” clause in that Award and would likely be seen as a device to circumvent overtime and other Award provisions in relation to hours of work.

92    As Australia Post submitted, there are other situations where industrial commissions have refused to allow applications by employers to insert multi-hiring agreements into awards, notwithstanding that the reality of the employment situation will be that single employers may be working more than one job for an employer. In these cases, the Commissions have left it as a matter for negotiation at workplace level: see Re Hospitality Industry (General) Award 2010 [2009] AIRCFB 992; 193 IR 174 at [13]-[17], referring to the Full Bench decision, Re Hospitality Industry — Accommodation, Hotels, Resorts and Gaming Award 1995 (1997) 77 IR 425.

93    The appellant contended that Australia Post had failed to identify what work a clause providing for multi-hiring might do in light of its construction of s 52(2). I do not agree there would be no work for s 52(2). Even on the appellant’s own approach to multi-hiring (ie that the bargaining parties might choose to include such a term in an enterprise agreement), with a multi-hiring clause, the parties might elect to identify which entitlements are to apply to an employee across the two or more jobs she or he is contracted to perform for an employer, and which are not. Or, as with the Alpine Resort Award 2010, the parties might choose to give one job a priority status over another. That is, the parties might bargain for a situation that does not reflect the separate application of entitlements which I have held is a consequence of s 52(2).

The appellant’s contracting out argument

94    The appellant relied on Goldberg J’s decision in Givoni especially at [26]-[32]. Givoni was clearly a “device” case, where the evidence suggested the employer was consciously seeking to avoid paying overtime entitlements to employees. It was in that context that Goldberg J made the observations his Honour did about the inability of employers to contract out of the entitlements given to employees by industrial instruments. That kind of “device” argument was not being alleged by the appellant before the Federal Circuit Court.

95    Nothing in this Court’s findings on this appeal, nor in the Federal Circuit Court’s findings as I understand them, is to be taken to suggest that the principles to which Goldberg J refers in Givoni are inapplicable. Rather, what has occurred between Australia Post and the appellant is not alleged to be a “device” to avoid the ordinary operation of the 2010 and 2013 enterprise agreements.

96    This argument, like the multi-hiring argument, although at times presented as free-standing arguments, were both in my opinion properly seen as part of the appellant’s construction argument about s 52(2). Where the “contracting out” argument is a consequentialist kind of argument, the “multi-hiring” argument is a contextual argument. Both are directed at giving a different meaning to s 52(2): at the least by not ascribing to it a critical role in the ascertainment of the entitlements of an employee who has more than one “job” with a single employer. Otherwise, if not seen in this way, both arguments have an element of circularity about them which makes them irrelevant.

The contractual issue

97    Aside from reliance on the multi-hiring and contracting out arguments, in my opinion the appellant’s case never quite came to grips with how the contractual analysis of the relationship between the parties sat with his construction of s 52(2). At times, counsel submitted s 52(2) was simply not relevant. That, it seems to me, cannot be the case, given its purpose and context in the statutory regime about the circumstances in which industrial instruments regulate the terms and conditions of employment.

98    In his reply submissions at [3] the appellant submitted:

Mr Lacson does not directly challenge a finding about him entering into two separate and distinct contracts of employment in circumstances where no such finding was directly made. However, Mr Lacson’s case on appeal, like his case below, is that there was only one employment for the purpose of his entitlements under the Enterprise Agreements.

99    Counsel for the appellant was asked about this aspect of the appellant’s case during oral argument. He variously submitted:

(1)    The appellant’s case was that an employer and the employee cannot “agree as between them to have different contracts of employment for the purpose of a single enterprise agreement. To do so would amount to a contracting out of the enterprise agreement.”

(2)    That was not, counsel submitted, an argument that is sourced in s 52(2) but comes from an absence of authority to suggest this is possible.

100    Eventually, counsel did accept that there was a finding by the Federal Circuit Court of two contracts of employment existing between the appellant and Australia Post. He clarified that the appellant was challenging that finding in the sense of this being a permissible situation under a single enterprise agreement – that is, the Federal Circuit Court found s 52(2) permitted, or at least contemplated such an arrangement, and the appellant submitted s 52(2) did not go so far.

101    I considered more clarity was required on the contractual issue and requested each of the parties to submit a document identifying what they each said constituted the contract of employment between the appellant and Australia Post. They each did so.

102    The outcome of the documents submitted appears to be this.

103    The appellant contends there is a single employment contract: partly in writing, partly oral and partly to be implied.

104    He contended that to the extent that it was oral it was constituted by three separate statements, between 2001 and 2005 (some of which I infer related to overtime arrangements). To the extent it was written, the appellant relied on four documents: one dated 23 February 2001, one dated 27 April 2001, one dated 27 September 2001 and one dated 18 February 2002. To the extent it was implied, the appellant relied on implications by operation of law and to give business efficacy to the contract in relation to the duties to be performed by the appellant and referred to in a number of paragraphs in his affidavit sworn 12 May 2017. The appellant’s May 2017 affidavit was not in Part C of the Appeal Book, but was filed by agreement subsequent to the hearing. Inherent in the way the appellant describes the contract would seem to be a number of arguments about how, after the initial contract on or around 23 February 2001, the appellant’s (sole) employment contract was varied from time to time.

105    In contrast, and consistently with the way Australia Post puts its case on appeal and before the Federal Circuit Court, Australia Post submitted there were two contracts. Australia Post submitted both contracts were partly oral, partly written and partly to be implied. For the Postal Delivery Officer job at Collingwood, Australia Post relied on a contract date of 18 February 2002 which was (as I understand the undisputed Federal Circuit Court findings – see [21]) when that job became a permanent part-time job, although the appellant was performing those duties prior to this date). For the Postal Services Officer job at the Melbourne Postal Facility, Australia Post relied on a contract date of 27 September 2001, with what it contended were variations as to location, hours and title in late 2004.

106    If a finding is necessary, then I am prepared to find on the evidence (which is largely undisputed, although the parties might emphasise different aspects) that there were indeed two contracts of employment between the appellant and Australia Post. They were entered into at different times, in respect of different positions or jobs, at different locations with distinct working hours, with each involving different kinds of work and different rates of pay. They had different conditions, at least initially – such as one being a permanent position and one not.

107    I also find that this is what the Federal Circuit Court meant by the passage at [62] of its reasons, which I have extracted at [25] above. Its finding was correct.

108    In this case, as Australia Post submitted, the appellant’s “dual employment” was a legal and factual reality which preceded the making and operation of each of the 2010 and 2013 Agreements. It was not a device: it was the product of the appellant’s choices about when he wished to work, and what he wished to do, and Australia Post’s agreement to offer him the jobs he wanted.

Extrinsic material

109    The approach I have taken above, and in relation to grounds 1-5, is consistent with the extrinsic material.

110    The Explanatory Memorandum to the Bill which became the FW Act stated:

…if a national system employee has more than one job, each job is treated separately in determining the effect of an award or agreement on the employee’s entitlements in relation to each job. For instance, the rule that only one enterprise agreement can operate in relation to a person at a particular time (see clause 58) does not mean that two agreements cannot cover, or apply to, an employee in relation to two different jobs.

111    A cautious approach to extrinsic material is required, as the High Court has emphasised: see Country Carbon Pty Ltd v Clean Energy Regulator [2018] FCA 1636 at [111]-[117]; Leadbeater’s Possum Inc v VicForests [2018] FCA 178; 228 LGERA 255 at [53]-[57]; and BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72; 252 FCR 97 at [93]-[97]. However, it is generally appropriate, and consistent with the caution to which I have referred, to use extrinsic material as a source to assess a construction arrived at on applicable principles. Conformity or consistency with extrinsic material may confirm a court’s construction: inconsistency with it may cause the Court to reassess its construction in light of the extrinsic material to see if this is one of those circumstances where the words of a Minister (or an explanatory memorandum) travel well beyond the text of the statute, and cannot be taken at face value.

Grounds 1-5: conclusions

112    What I have set out above deals with grounds 1-5 of the notice of appeal.

113    Grounds 1, 3 and 5 are all directed at the proper construction of s 52(2), in different ways, and I have resolved those grounds against the appellant. Ground 2 also raises the question of whether the FW Act requires hours worked in different jobs or positions under the same enterprise agreement to be considered cumulatively in determining entitlements and I have accepted the submissions of Australia Post that there is nothing in the 2010 or 2013 Agreements, nor in the FW Act or any broader context, to support such an interpretation. Ground 4 is the contracting out argument, which I have rejected.

114    Ground 5 fits with the notice of contention, and is about the interpretation of the entitlement provisions of the 2010 and 2013 Agreements, and need not be determined given I have rejected the principal grounds of appeal. That leaves ground 6, which I consider below.

Ground 6

115    Ground 6 of the appeal contended the Federal Circuit Court was wrong (at [49] of its reasons) to attribute a concession to the appellant’s counsel, because no such concession was made. Australia Post expressly disclaimed reliance on any concession, and it does not appear to me that the Federal Circuit Court relied to any material extent on it. Ground 6 could be rejected on those bases alone.

116    If that were not sufficient, this ground also had some difficulty about it, stemming again in my opinion from the resistance to the proposition that the appellant and Australia Post had two contracts of employment.

117    In written submissions on the appeal, counsel for the appellant submitted he had made no “concession” to the effect that if there were two contracts of employment then s 52(2) of the FW Act was fatal. Rather he submitted he had said to the Federal Circuit Court that if there were two “employments”, s 52(2) was fatal to the appellant’s claim. Counsel for the appellant said he had submitted to the Federal Circuit Court that the only circumstances in which there could be two “employments” between a single employee and a single employer were first, if there was a multi-hiring clause in the industrial instrument or second, if the two “employments” arose under different industrial instruments.

118    Whether or not a concession was wrongly attributed to the appellant’s counsel, as I have explained, the Federal Circuit Court’s approach was not affected by error. This ground has no bearing on the outcome of the appeal.

The Respondent’s Notice of Contention

119    In terms of their relevant text, the 2010 and 2013 Agreements are materially the same.

120    Clause 17.1.1 deals with reasonable overtime:

17.1.1     Reasonable Overtime

(a)     Subject to clause 17.1.1(b) Australia Post may require an employee to work reasonable overtime in accordance with the provisions of this clause.

(b)     Provided that this subclause does not apply to employees employed in accordance with the provision of clause 23.13—Parental Leave—Right to Request

(c)     An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:

(i)     any risk to employee health and safety;

(ii)     the employee’s personal circumstances including any family responsibilities;

(iii)     the needs of the workplace or enterprise;

(iv)     the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and

(v)     any other relevant matter.

121    Clause 17.1.4 deals with overtime for part-time employees:

17.1.4     Part-Time Employees

(a)     Part-time employees are eligible for overtime penalty rates applicable to full-time employees in the following circumstances:

(i)    duty in excess of 7 hours 21 minutes on any one day;

(ii)    where an employee is required to work on more than 5 days per week.

(b)     Duty in excess of normal requirements but which does not attract a penalty under clause 17.1.4(a) will be paid at the rate applicable to ordinary duty on that day.

122    Clause 17.4 deals with rest relief after overtime:

17.4     Rest Relief after Overtime

17.4.1     10 Hour Break

(a)     An employee, after the completion of overtime and ordinary duty on one day/shift, must be given at least 10 consecutive hours off duty, including travelling time, before resuming any duty on the next day/shift. Any absence during ordinary working time which occurs within the 10 hours will be without loss of salary.

(b)     Provided that if such an employee is required by Australia Post to resume or continue work without having had 10 consecutive hours off duty the employee is to be paid at double rates until released from duty for that period, and will then be entitled to be absent for 10 consecutive hours off duty, without loss of pay for ordinary working time occurring during that absence.

17.4.2     Eligibility

The rest relief after overtime provisions clause 17.4 apply only to employees who are eligible for overtime payment.

123    The respondent submitted, and if it was necessary to determine I may well have accepted, that the word “duty” in cl 17.1.4 means the performance of the tasks of the employee’s position.

124    The respondent’s notice of contention raises one ground, based on three particular matters.

125    The first matter is in substance another way of putting the argument that found favour with the Federal Circuit Court. That is, the respondent contends that the appellant’s entitlements to overtime meal allowance, general overtime and rest relief after overtime (under the relevant clauses of the enterprise agreements), were to be determined only by reference to hours of work performed in one job and not by aggregating hours worked by the appellant in each of his positions as a Postal Delivery Officer and a Postal Services Officer.

126    The remaining two matters involve what the respondent describes as “preconditions” to the appellant’s claimed entitlements. They are first, that the respondent “required” the appellant to work overtime and second (in relation to rest relief after overtime) that when the appellant commenced work at either of the two positions (ie morning or afternoon shifts as a Postal Delivery Officer and Postal Services Officer respectively), the appellant “resumed or continued work”, which the respondent submits did not occur since on each occasion the appellant commenced different work, with different tasks.

127    None of these issues were determined by the Federal Circuit Court.

128    As I have dismissed the appeal, it is unnecessary to decide the notice of contention. The parties, and in particular the respondent, accepted this was the case. Some of the interpretation issues raised by the notice of contention about the entitlement clauses are not straightforward and they should await determination in a circumstance where they must be decided.

Conclusion

129    There was no error in the approach taken by the Federal Circuit Court, nor in the conclusions it reached.

130    In a summary of the respondent’s submissions, counsel for Australia Post submitted there was, offered and accepted two, genuine, part-time jobs: there was no contrivance about the circumstances nor any evidence Australia Post sought to avoid or minimise its obligations under the 2010 and 2013 enterprise agreements. He submitted that the evidence showed it had been the appellant’s choice to apply, at different times, for two different jobs and Australia Post had elected to offer him an employment contract on two different bases: thus, there was no conduct that could be described as Australia Post attempting to contract out of its obligations. I accept those submissions.

131    It may be an unusual situation for a single employee to have two different jobs with one employer, and (as the Federal Circuit Court found and I have also found, to the extent it was necessary to do so) two contracts of employment. However, I have concluded that the operation of the enterprise agreements on the content of the terms of each contract of employment between the appellant and Australia Post is affected by s 52(2) of the FW Act so that the enterprise agreement applies to each “particular employment” the appellant had with Australia Post, and not in some cumulative way as the appellant contended.

132    As Australia Post submitted and the appellant accepted, the appellant had been paid overtime, and other entitlements, in respect of each of his jobs, where those entitlements applied under the enterprise agreements. That the appellant found himself performing two different jobs, at two different locations, with two different kinds of work, for one employer, was a function of choices he had made. It does not appear he made those choices believing, or having it represented to him, that they would be treated as one job and he should secure the considerable additional sums of money he is now seeking. Rather, he appears to have made those choices on the basis – correctly as this Court and the Federal Circuit Court have found – that he had two separate employment arrangements with Australia Post, each one regulated separately by the enterprise agreements.

133    The appeal must be dismissed, and there will be no orders as to the notice of contention, since it has not been determined.

134    Australia Post did not submit that there were any circumstances to invoke s 570(2) of the FW Act and in those circumstances there will be no orders as to costs.

Associate:

Dated:    1 February 2019