Federal Court of Australia

Cacciola v Serco Australia Pty Ltd [2025] FCA 361

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) to file a notice of appeal from the judgment of the Industrial Magistrates Court of Western Australia is allowed.

2.    The notice of appeal attached to the affidavit of Craig Fordham sworn on 2 December 2022 is to be accepted for filing.

3.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    The applicant, Robert Cacciola, was employed by the respondent pursuant to the terms of a written contract of employment dated 28 June 2018.  In the Industrial Magistrates Court of Western Australia (Industrial Magistrates Court), the applicant claimed that the respondent, Serco Australia Pty Ltd, had underpaid him during a period of about nine months in 2018 and 2019 (relevant time), and that it had thereby contravened various provisions of the Serco CPSU Acacia Prison General Enterprise Agreement 2017 (Serco Enterprise Agreement) that applied to him.  Consequently, the applicant claimed that the respondent had contravened s 50 and s 323(1) of the Fair Work Act 2009 (Cth).  Based on these alleged contraventions, the applicant sought orders from the Industrial Magistrates Court that the respondent pay to the applicant the amount he had been underpaid, together with orders for pecuniary penalty orders and other ancillary orders.

2    An industrial magistrate dismissed the applicant's claim.

3    The applicant now applies for an extension of time within which to appeal against the magistrate's decision.  The applicant argues that on a proper construction of the Serco Enterprise Agreement, the magistrate should have found that he had not been paid at the correct rate and that he had been underpaid during the relevant time.

4    For the following reasons, while I would grant an extension of time within which to appeal, the appeal must be dismissed.

The applicant's claim

5    The applicant commenced proceedings against the respondent in the Industrial Magistrates Court on 25 May 2021.

6    According to the statement of claim that accompanied the applicant's originating claim, the applicant was employed by the respondent under the terms of a contract of employment that was set out in a letter addressed to the applicant dated 28 June 2018 (letter of employment), as well as in a document that was attached to that letter entitled 'Offer of Casual Employment - Justice West' (Justice West offer).  The statement of claim further alleged that the applicant was employed as a 'Trainee Custodial Officer', with a classification of 'Trainee Custodial Officer (Induction)'.

7    The applicant also claimed that the Serco Enterprise Agreement applied to both himself and to the respondent and that pursuant to the terms of that agreement he was entitled to receive $39.60 for each hour of work he performed for the respondent, instead of the amount of about $31.75 per hour he actually received.  On that basis, the applicant claimed that the respondent had underpaid him by $6,234.92 over a period of about nine months.

8    The applicant claimed that by this underpayment:

(a)    the respondent had contravened three sub-clauses of the Serco Enterprise Agreement and that it had thereby contravened s 50 of the Fair Work Act; and

(b)    the respondent had not paid him the correct amount in full on a fortnightly basis, and that it had thereby contravened s 323(1)(a) of the Fair Work Act.

9    The applicant sought declarations that the respondent had contravened s 50 and s 323(1) of the Fair Work Act, although the legal basis on which he sought those declarations in the Industrial Magistrates Court is not clear.  He sought a further order pursuant to s 545(3) of the Fair Work Act that the respondent pay him the amount of $6,234.92, and an order pursuant to s 546(1) that the respondent pay a pecuniary penalty, to be paid to the Western Australian Prison Officers' Union of Workers under s 546(3).

10    It was common ground that the applicant was entitled to seek orders under s 545(3) and s 546(1), and that the Industrial Magistrates Court had the power to make the orders sought:  s 539, s 545(3) and s 546(1) and (3) of the Fair Work Act.

The respondent's reply to the applicant's claim

11    Before the magistrate, the respondent's principal argument was that to the extent that the applicant was employed as a casual Trainee Custodial Officer pursuant to the terms of the letter of employment, that employment was subject to the provisions of the Corrections and Detention (Private Sector) Award 2010 (Award), and not the Serco Enterprise Agreement.  However, the magistrate ultimately determined that issue in the applicant's favour.  The respondent does not now rely on any notice of contention in which it seeks to uphold the magistrate's decision to dismiss the applicant's claims on the basis that her Honour erred in concluding that the Serco Enterprise Agreement applied to the applicant's employment. Accordingly, nothing further need be said about this issue.

12    The respondent also denied that it had contravened the Serco Enterprise Agreement or that it had contravened any provisions of the Fair Work Act.

The magistrate's decision

13    As I have already said, the magistrate dismissed the applicant's claim.  To properly understand why the claim was dismissed it is necessary to say something about the respective cases that were presented to the magistrate.

The evidence

14    Having regard to the real issues in this appeal, it is unnecessary to refer to the evidence that was before the magistrate in great detail.  None of the evidence was challenged.

The applicant's witness statement

15    The applicant relied on a witness statement said to have been signed by him on 23 December 2021.  I have assumed that the unsigned copy of the witness statement that formed part of the appeal book in this matter is a true copy of the signed version of that document.  In that witness statement, the applicant set out his employment history with the respondent.  Attached to the witness statement was what the applicant described as the 'initial letter of employment' and the 'terms and conditions of employment', each dated 28 June 2018, which he says were provided to him just before he commenced employment with the respondent.  The 'initial letter of employment' was the letter of employment.

The applicant's letter of employment

16    In the letter of employment, the applicant was invited to confirm his acceptance of an offer of employment on the terms and conditions set out in a schedule to the letter 'in conjunction with [the] "Offer of Casual Employment - Justice West v 1"', by signing and returning the letter.  According to an agreed statement of facts that formed part of the evidence before the magistrate (Agreed Facts), the applicant was engaged as a casual employee of the respondent in the position of a 'Casual Trainee Custodial Officer' pursuant to the letter of employment.

17    The schedule to the letter of employment contained certain information about the applicant's employment with the respondent.  Relevantly, the schedule recorded that the applicant's job title was 'Trainee Custodial Officer', and that his classification was 'Trainee Custodial Officer (Induction)'.

18    The schedule also contained the following information:

19    Attached to the letter of employment was the Justice West offer, which set out the terms and conditions of the offer of employment that was made to the applicant, and provided that the schedule to the letter of employment formed part of those terms and conditions.  Collectively, the Justice West offer and the schedule in the letter of employment were defined as 'the Agreement'.

20    The Justice West offer expressly provided that the Serco Enterprise Agreement (which was defined in the schedule to the letter of employment as the 'Instrument') would 'also apply to [the applicant's] employment but it will not form part of this Agreement'.  Further, cl 19 of the Justice West offer provided that the Agreement was the entire agreement between the applicant and the respondent.

21    The applicant's remuneration was the subject of cl 3 of the Justice West offer.  Sub-clause 3(a) provided that the applicant's 'rate of pay would be as outlined in the Schedule in accordance with the terms of the Instrument for [the applicant's] job classification', and that the applicant would be paid any applicable penalty rates, allowances and loadings under the 'Instrument' whilst it applied to his employment.

22    Clause 5 of the Justice West offer provided that the applicant was to be employed on a casual basis, and that he would be offered work on an hourly basis as required by the respondent.  Clause 13 also provided that the applicant's employment could be terminated at any time by either the applicant or the respondent by giving 1 hours' notice in accordance with the terms of the 'Instrument'.

The 'Instrument'

23    As can be seen from the extract taken from the schedule that formed part of the letter of employment, which appears at [18] of these reasons, the 'Instrument' was defined as the 'Serco CPSU Acacia General Enterprise Agreement 2017'.  However, the Agreed Facts that were before the magistrate referred to the Serco CPSU Acacia Prison General Enterprise Agreement 2017.  Notwithstanding the different descriptions given to the 'Instrument', I have assumed that they are both references to the Serco Enterprise Agreement.

24    The outcome of this appeal turns on the proper construction of a provision in the Serco Enterprise Agreement.  Accordingly, it will be necessary to reproduce some of the provisions of that agreement.  However, it is first necessary to place the Serco Enterprise Agreement in the context of the applicant's claims under the relevant provisions of the Fair Work Act.

25    As I have already said, the applicant claimed that the respondent contravened three sub-clauses of the Serco Enterprise Agreement and that it thereby contravened s 50 of the Fair Work Act.  The applicant also separately claimed that the respondent contravened s 323(1)(a) of the Fair Work Act.

26    Section 50 of the Fair Work Act is in the following terms:

A person must not contravene a term of an enterprise agreement.

Note 1: This section is a civil remedy provision (see Part 4-1).

Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person:  see subsection 51(1).

27    There was no issue in the court below that the Serco Enterprise Agreement was an 'enterprise agreement' for the purposes of s 50 of the Fair Work Act.  However, s 51(1) provides that an enterprise agreement, such as the Serco Enterprise Agreement, does not impose obligations on a person and that a person does not contravene a term of an enterprise agreement unless the agreement applies to the person.  Accordingly, to succeed in establishing that the respondent contravened s 50, the applicant was required to satisfy the magistrate that the Serco Enterprise Agreement applied to the respondent.

28    Pursuant to s 52(1), an enterprise agreement relevantly applies to an employer 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.

29    The magistrate found that the requirements in s 52(1)(a) and s 52(1)(c) had been established.  Those findings are not challenged by either party on the appeal.

30    The magistrate also found that the requirement in s 52(1)(b) had been established.  However, her Honour considered that the relevant question was whether the Serco Enterprise Agreement covered the applicant.  In my view, that was the wrong question.  As I have already said, by operation of s 51(1), a necessary pre-condition to a conclusion that a person has contravened a term of an enterprise agreement is a finding that the agreement applied to the person who is alleged to have committed the contravention.  Accordingly, the magistrate was required to consider whether the Serco Enterprise Agreement covered the respondent.

31    For the purposes of s 52(1)(b), an enterprise agreement covers an employer 'if the agreement is expressed to cover (however described) the … employer':  s 53(1).  An 'employer', for the purposes of s 52, is a 'national system employer':  s 14 and s 42.  It was an agreed fact that the respondent was a national system employer under the Fair Work Act.  Further, cl 2.3 of the Serco Enterprise Agreement expressly provided that the respondent was one of the parties to that agreement.  Accordingly, the requirement in s 52(1)(b) was established based on the unchallenged evidence.

32    Against this background, the relevant issue for the magistrate to determine was whether the respondent had contravened any one or more of the three sub-clauses of the Serco Enterprise Agreement relied on by the applicant. I will shortly identify those sub-clauses.  However, I will first deal with the legislative basis for the other aspect of the applicant's claim.

33    The applicant also claimed that the respondent contravened s 323(1)(a) of the Fair Work Act.  Section 323 is in the following terms:

323 Method and frequency of payment

(1)    An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a)    in full (except as provided by section 324); and

(b)    in money by one, or a combination, of the methods referred to in subsection (2); and

(c)    at least monthly.

Note 1:  This subsection is a civil remedy provision (see Part 4‑1).

Note 2:  Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a) incentive‑based payments and bonuses;

(b) loadings;

(c) monetary allowances;

(d) overtime or penalty rates;

(e) leave payments.

(2)    The methods are as follows:

(a)    cash;

(b)    cheque, money order, postal order or similar order, payable to the employee;

(c)    the use of an electronic funds transfer system to credit an account held by the employee;

(d)    a method authorised under a modern award or an enterprise agreement.

(3)    Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.

Note:  This subsection is a civil remedy provision (see Part 4‑1).

34    The essence of the applicant's claim was that by underpaying him for a period of time, the respondent contravened s 323(1)(a) by failing to pay amounts that were payable to him in relation to his performance of work in full.

35    Based on claims that the respondent had contravened s 50 and s 323(1)(a) of the Fair Work Act and having regard to the fact that both of those provisions are civil penalty provisions (s 539), the applicant sought orders pursuant to s 545(3) and s 546(1) and (3).  It is unnecessary to reproduce those provisions.  It is sufficient to note that the applicant relevantly sought orders that:

1.    The respondent pay the applicant an amount of $6,234.92, representing the difference between what he was paid and what he claimed he should have been paid, with interest, pursuant to s 545(3).

2.   The respondent pay a pecuniary penalty, which penalty was to be paid to the Western Australian Prison Officers' Union of Workers, pursuant to s 546(1) and (3).

36    Having explained the legislative context in which the applicant's claims were made, it is now necessary to identify the relevant provisions of the Serco Enterprise Agreement.

37    According to the Agreed Facts, the Serco Enterprise Agreement was approved by the Fair Work Commission on 15 February 2018 and operated from 22 February 2018.

38    Sub-clause 2.1 of the Serco Enterprise Agreement provides that:

2.1    Except as mentioned within this clause, this Agreement applies to all persons employed by Serco Australia Pty. Ltd. at Acacia Prison in Western Australia, who are engaged in the job classifications set out in the attached schedules.

39    Further, sub-cl 2.3 provides that:

2.3    The parties to this Agreement are:

a)    Serco Australia Pty. Limited ('the Employer');

b)    Employees whose employment is within the scope and application of this Agreement as outlined in the schedules; and

c)    CPSU, The Community and Public Sector Union State Public Sector Federation Group.

40    A series of definitions are set out in cl 6, including the following:

6.3    Trainee Custodial Officer - means an Employee undertaking the Initial Training Course and has yet to be assessed as successfully completing the Initial Training Course.

6.4    Custodial Officer - means an Employee performing custodial functions who is working towards completing or has successfully completed a Certificate III in Correctional Practice.

…

6.9    Employee - means an Employee of the company whose job classification is within the scope and application of this Agreement.

41    As will become clear, cl 7 of the Serco Enterprise Agreement assumes central importance in the resolution of this appeal.  That clause is in the following terms:

7. Types of Employment

7.1    Employment may be either full time, part time, specific term or casual.

7 .2    An Employee may be engaged on a probationary period of not more than six (6) months.

7.3    Employees engaged on a part time basis will be paid an hourly rate based on the actual hours worked and are entitled to all entitlements under this Agreement on a pro rata basis.  A part time Employee is a person engaged for less than a full time equivalent.

7.4    Employees engaged on a casual basis will be employed by the hour and paid the hourly rate of pay in the attached relevant Schedule 2.  Casual Employees are entitled to a 25% loading on their ordinary hourly rate for all hours worked.  Casuals are not eligible to paid redundancy, public holidays that they are not working, annual leave, personal leave, maternity leave, paternity leave, bereavement leave or blood donor leave.

7.5    When a casual non-custodial Employee is engaged in work at times that attract penalty rates and/or overtime, the penalty or overtime will be calculated on their hourly rate which must include the 25% loading.

7.6    When a casual Custodial Officer is engaged in work at times that attract penalty rates and/or overtime, the penalty or overtime will be calculated on their hourly rate which include the 25% loading.

42    As I will shortly explain in more detail, the applicant's claim that the respondent contravened s 50 and s 323(1) of the Fair Work Act was, in part, based on a claim that the respondent had contravened sub-cl 7.4.  As can be seen, sub-cl 7.4 refers to an 'attached relevant Schedule 2'.  Although the proper construction of those words will be dealt with later in these reasons, it is convenient at this point to note that there are in fact three schedules attached to the Serco Enterprise Agreement.

43    The first of the schedules, entitled 'Schedule 1 - Custodial Salaries (Annualised)', sets out in table form a list of positions with corresponding average full time hours per week, hourly rates used to calculate overtime, annualised hourly rates and annualised salaries, effective from certain dates.  It is not necessary to reproduce the whole schedule.  It is enough to refer to the various 'positions' specified in the schedule:

1.    Golf One Unit Manager;

2.    Unit Manager;

3.    Mon-Fri Unit Manager;

4.    Security Shift Officer (L2);

5.    Case Management Officer (L2);

6.    Trainee Custodial Officer (Induction);

7.    Security Shift Custodial Officer;

8.    Case Management Custodial Officer;

9.    Canine Handlers; and

10.    Industries Custodial Officer.

44    Most relevant to the determination of this appeal is the position 'Trainee Custodial Officer (Induction)'.

45    The second schedule attached to the Serco Enterprise Agreement is headed 'Schedule 2 - Casual Custodial Officer (Hourly Rate)'.  This schedule only refers to one position, and takes the following form:

46    This schedule was central to the applicant's claims before the Industrial Magistrates Court.  The applicant claimed, and continues to claim, that the respondent was required to pay him the hourly rate referred to in Schedule 2.

47    The third schedule is headed 'Schedule 3 - Non-Custodial Salaries/Wages'.  This schedule is set out in a form that is similar to Schedule 1.  Schedule 3 also contains a list of several positions with corresponding average full-time hours per week, base hourly rates and annual salaries, which are effective from certain dates.

48    The applicant also claimed that the respondent contravened sub-cl 18.1 and 18.2 of the Serco Enterprise Agreement.  Clause 18 is in the following terms:

18. Payment of Wages

18.1    Wages are paid on a fortnightly basis within four (4) days after the completion of the fortnightly pay cycle, in arrears, by way of electronic funds transfer into a bank account(s) nominated by the Employee.

18.2    If the Employee identifies underpayment of their ordinary base wage, then this will be paid within three (3) working days of the advice being received.

18.3    In the event of an overpayment being identified and accepted by the Employee, the Employee must pay that overpayment back to Serco Australia Pty Ltd at a rate agreed between the parties but no less than 10% of the overpayment or $100 per fortnight, whichever is the lesser.  Should the Employee dispute the alleged overpayment, then the Dispute Resolution Procedure of this Agreement will apply.

49    It is unnecessary to say anything further about cl 18.  As the applicant's counsel confirmed at the hearing of the appeal, the applicant no longer presses his claim that the respondent contravened that clause.

50    Having set out the more relevant clauses of the Serco Enterprise Agreement it is now necessary to say something about the magistrate's decision to dismiss the applicant's claims.

The magistrate's reasons for dismissing the applicant's claims

51    The magistrate identified that the applicant's claim was comprised of a series of steps.  Those steps can be summarised as follows:

1.    The Serco Enterprise Agreement applied to the applicant at the relevant time.

2.    The applicant was employed by the respondent as a 'Trainee Custodial Officer (Induction)', on a casual basis.

3.    As that role involved the performance of 'custodial functions' it followed that the applicant was in a role that was a sub-category of 'Custodial Officer'.

4.    The applicant's rate of pay was therefore governed by Schedule 2 of the Serco Enterprise Agreement as that is the only schedule that specifically mentions 'casual' employment of custodial officers.

5.    As Schedule 2 of the Serco Enterprise Agreement provides for one rate of pay for casual custodial officers, being $39.60 per hour, the applicant should have been paid at that rate.

6.    As the applicant was in fact paid at the rate of $31.7524 per hour, the respondent contravened a term of the Serco Enterprise Agreement, contrary to s 50 of the Fair Work Act and is liable to pay the difference between the rate paid and the rate claimed.

52    Working within that framework, the magistrate found that the Serco Enterprise Agreement applied to the applicant.  However, and contrary to the applicant's claim, her Honour concluded that he had not been employed as a 'Custodial Officer (Casual)' for the purposes of Schedule 2 of that agreement.  The magistrate found instead that the applicant had been employed by the respondent as a 'Trainee Custodial Officer (Induction)' and that, on this basis, he had been paid the correct rate of pay.  Accordingly, the magistrate dismissed the applicant's claim.

53    The magistrate correctly recognised that the critical issue for her to determine was the correct rate of pay the respondent was obliged to pay to the applicant under the Serco Enterprise Agreement and that the resolution of that issue turned on the proper construction of the terms of that agreement.  However, her Honour commenced her consideration of that issue by noting that no evidence had been adduced about 'the negotiation of the [Serco Enterprise] Agreement and what might have been contemplated when certain terms were drafted':  Robert Cacciola v Serco Australia Pty Ltd (2022) WAIRC 00655 at [64].  Her Honour did not explain why she considered that such evidence may have been relevant to the task of construing that agreement.  However, nothing turns on this aspect of the magistrate's reasoning.

54    Further, her Honour concluded that the applicant had not been employed as a 'Custodial Officer (Casual)' for the purposes of Schedule 2 of the Serco Enterprise Agreement after considering whether the applicant had actually been performing the tasks of a 'Custodial Officer', taking into account the Award and the indicative tasks of a 'Correctional Officer' provided for in the Award.  Again, her Honour did not explain why she took that approach, and it is not clear why she did not give the parties an opportunity to make submissions about whether it was open to her to construe the Serco Enterprise Agreement in that way.

55    In any event, the magistrate did deal with sub-cl 7.4 of the Serco Enterprise Agreement by noting that, on its face, it gives the impression that all employees covered by the Serco Enterprise Agreement, and who are engaged on a casual basis, will be paid the hourly rate of pay in Schedule 2 of that agreement.  This is because the first sentence of that sub-clause reads:  'Employees engaged on a casual basis will be employed by the hour and paid the hourly rate of pay in the attached relevant Schedule 2'.

56    However, the magistrate concluded that sub-cl 7.4 should not be construed literally.  Her Honour reasoned, in effect, that sub-cl 7.4 operates in relation to all employees occupying the various positions referred to in Schedule 1, 2 and 3 of the Serco Enterprise Agreement who are employed on a casual basis.  Relevantly, the magistrate found that the applicant was employed to occupy the position of 'Trainee Custodial Officer (Induction)', on a casual basis.  On that footing, and in accordance with her preferred construction of sub-cl 7.4, the magistrate found that the applicant was entitled to be paid at the hourly rate of pay specified in Schedule 1 (with a 25% loading applied to the hourly rate) and not at the hourly rate of pay specified in Schedule 2.  It was on that basis that the magistrate dismissed the applicant's claim.

57    It should be noted that the magistrate appears to have concluded that the relevant hourly rate was the amount referred to in Schedule 1 as the 'Hourly rate used to calculate Overtime', which was an amount in the sum of $25.40.  However, Schedule 1 also referred to the 'Annualised Hourly Rate' for each job classification.  Given that both rates are the same for the position of 'Trainee Custodial Officer (Induction)', nothing turns on this aspect of the magistrate's conclusions.

The grounds of appeal

58    The applicant seeks to rely on six grounds of appeal.  Those grounds complain about the approach taken by the magistrate in determining the proper construction of various provisions of the Serco Enterprise Agreement and about the outcome of that approach.  The applicant also complains that the magistrate denied him procedural fairness by dismissing his claim on grounds that he had no opportunity to deal with.

59    There is no need to reproduce the grounds of appeal.  It is also unnecessary to deal with the applicant's complaint that the magistrate denied him procedural fairness by failing to give him the opportunity to make submissions in connection with an approach the magistrate took to construing the Serco Enterprise Agreement.  Regardless of the correctness of the approach taken by the magistrate to construing the Serco Enterprise Agreement, and irrespective of whether that approach denied procedural fairness to the applicant, the critical issue is whether the magistrate was correct to dismiss the applicant's claim.  In that regard, the real question is whether the magistrate was correct to conclude that the respondent did not contravene sub-cl 7.4 of the Serco Enterprise Agreement by not paying the applicant the hourly rate for a 'Custodial Officer (Casual)', provided for in Schedule 2 of that agreement.

The nature of the appeal

60    Before dealing with the issue raised by the grounds of appeal, it is necessary to say something about the nature of an appeal against a decision of the Industrial Magistrates Court.

61    Pursuant to s 565(1) and s 565(1A)(b) of the Fair Work Act, an appeal lies to the Federal Court from a decision of an 'eligible State or Territory court exercising jurisdiction under [the Fair Work Act]'.  The Industrial Magistrates Court is an 'eligible State … court' as it is a court constituted by an industrial magistrate:  s 12 of the Fair Work Act (see definitions of 'eligible State or Territory court' and of 'magistrates court').  In this case, the Industrial Magistrates Court was exercising jurisdiction under the Fair Work Act as the applicant sought orders in relation to contraventions of both s 323(1) and s 50 of that Act:  s 539(2) of the Fair Work Act.

62    An appeal pursuant to s 565(1) of the Fair Work Act invokes the jurisdiction conferred by s 24 of the Federal Court of Australia Act 1976 (Cth) (FCA).  Accordingly, it is not enough that this Court disagrees with the decision of the magistrate.  There must be an error of law demonstrated or an error infecting a finding of fact:  see Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627 at [20] (Colvin J), and the authorities referred to by his Honour.

63    As this is an appeal from a judgment of a court of summary jurisdiction, s 25(5)(a) of the FCA applies such that the appellate jurisdiction of this Court is to be exercised by a single judge.

64    An appeal pursuant to s 565(1) of the Fair Work Act is to be conducted by way of rehearing, based on the evidence that was before the magistrate, although the Court has a discretion to admit further evidence:  s 27 of the FCA; Ghimire at [21].  Section 28(1) of the FCA confers wide powers on the Court in the exercise of its appellate jurisdiction, including powers to affirm, reverse or vary a judgment appealed from, and to give such judgment as in all the circumstances it thinks fit:  s 28(1)(a) and (b) of the FCA.

Application for extension of time

65    The applicant was required to file a notice of appeal within 28 days after the date on which the judgment appealed from was pronounced or the order was made:  r 36.03 of the Federal Court Rules 2011 (Cth).  As the relevant order dismissing the applicant's claim was made by the Industrial Magistrates Court on 9 September 2022, the applicant was required to file a notice of appeal by 10 October 2022.

66    In circumstances in which the applicant's legal representative plainly realised that they were going to be unable to file a notice of appeal within the time allowed, an application for an extension of time within which to appeal was filed on 6 October 2022.  In the affidavit filed in support of the application for an extension of time, the solicitor who had conduct of the matter on behalf of the applicant explained that after receiving advice from senior counsel, he was instructed to prepare an appeal to this Court.  However, he further explained that senior counsel had been unable to settle the notice of appeal due to her unavailability and foreshadowed that it would be filed before the week commencing 17 October 2022.

67    By 21 October 2022 it had become clear to the applicant's legal advisers that there were going to be further delays in finalising a notice of appeal.  In those circumstances, the applicant filed an affidavit sworn by the applicant's legal representative attached to which was a copy of a draft notice of appeal.

68    The applicant subsequently attempted to file a notice of appeal on 28 November 2022.  However, the registry advised that it could not be accepted for filing, presumably because an extension of time within which to file the notice had not been granted at that stage.  In those circumstances, the applicant filed a further affidavit sworn by the applicant's lawyer on 2 December 2022, attached to which was a copy of a draft notice of appeal that had been attempted to be filed.

69    It is apparent that there has been a considerable delay since the applicant filed his application for an extension of time.  However, it appears from the Court file that the hearing of this appeal was first listed for 11 December 2023.  By orders made on 14 November 2023, that hearing was adjourned by consent, and it was then evidently re-listed for hearing before me.

70    The principles to be applied when a party applies for an extension of time within which to appeal are well settled.  The Court has a discretion whether to allow an extension of time pursuant to r 36.05 of the Federal Court Rules.  The principles relevant to the exercise of that discretion are settled.  Those principles were recently summarised by the Full Court of the Federal Court in Quach v RU [2024] FCAFC 32 at [24]-[25] (Perry, Meagher and Shariff JJ).  Generally, there are a range of considerations which may be taken into account in the exercise of the discretion, including:

(a)    the length of the delay;

(b)    whether the applicant has demonstrated an acceptable explanation for the delay;

(c)    whether the respondent would suffer prejudice if the extension of time were granted; and

(d)    the merits of the substantive appeal, approached in a reasonably impressionist manner, if the extension of time was granted.

71    In my view, it is appropriate to exercise the discretion to allow the applicant's application for an extension of time.  The applicant took the responsible step of filing the application before the time allowed for the filing of a notice of appeal had elapsed.  The reasons for not being in a position to file a notice of appeal at that time are adequately explained.  In that regard, the applicant not unreasonably wanted to have the notice of appeal settled by senior counsel before it was formally filed.  Unfortunately, due to reasons that were beyond the applicant's control, his senior counsel was not available to settle the notice of appeal within the time allowed.

72    The respondent has not suggested that it would suffer any prejudice if the extension of time was granted.  Further, I would not be prepared to conclude that the merits of the appeal are such that it would be inappropriate to grant the extension of time.

73    Accordingly, the applicant's application for an extension of time filed on 6 October 2022 is allowed.

The merits of the appeal

74    The applicant essentially contends that the magistrate should have found that the respondent contravened s 50 and s 323(1)(a) of the Fair Work Act by failing to pay the applicant in accordance with sub-cl 7.4 and Schedule 2 of the Serco Enterprise Agreement.  Accordingly, it is necessary to more closely consider the operation and effect of those provisions of the Serco Enterprise Agreement.

75    I have reproduced cl 7 of the Serco Enterprise Agreement earlier in these reasons at [41].

76    The evident objective purpose of sub-cl 7.1 is to allow for the employment of any employee to whom the Serco Enterprise Agreement applies on a full time, part time, specific term or casual basis.

77    Sub-clause 7.2, which provides that a person may be employed on a probationary period of no more than 6 months, is not relevant to the issues raised on the appeal and may be passed over.

78    Sub-clauses 7.3 to 7.6 are concerned with the rates of pay for employees who are engaged by the respondent on a part time or casual basis.  Other than sub-cl 17.1 (which is concerned with increases in wages upon approval of the Serco Enterprise Agreement by the Fair Work Commission), sub-cl 27.20 (which is concerned with the payment of overtime), sub-cl 34.1 (which is concerned with 'personal/carer's leave'), and sub-cl 35.11 (which is concerned with long service leave), sub-cl 7.3 to 7.6 are the only provisions that deal with the rates of pay for part time and casual employees.  There are other provisions such as clauses 18, 19, 20 and 28, which are concerned with the rates of pay and conditions of employment that apply to full time employees.

79    Sub-clause 7.3 is concerned with employees engaged on a part time basis and provides that such employees are to be paid an hourly rate according to the hours worked, with a pro rata right to all entitlements under the Serco Enterprise Agreement.

80    Sub-clause 7.4 is concerned with the rates of pay for employees who are employed on a casual basis.  Sub-clause 7.4 also confers on employees who are engaged on a casual basis an entitlement to a 25% loading on their 'ordinary hourly rate' and clarifies that such employees do not receive certain entitlements they might otherwise have been entitled to had they been employed on a full time, part time or specific term basis.

81    Sub-clauses 7.5 and 7.6 are then concerned with the calculation of penalty and overtime rates for 'casual non-custodial Employee[s]' and for 'Casual Officer[s]'.

82    Having regard to the centrality of sub-cl 7.4 to the determination of this appeal, it is necessary to deal with that provision in more detail.  When the sub-clause is broken down, it has three components:

(a)    'Employees' who are engaged on a casual basis will be 'employed by the hour and paid the hourly rate of pay in the attached relevant Schedule 2';

(b)    casual 'Employees' are entitled to a 25% loading on their ordinary hourly rate for all hours worked; and

(c)    casuals are not eligible for certain benefits and allowances.

83    There is no dispute that the applicant was an 'Employee engaged on a casual basis', that he was 'employed by the hour' and that he was paid an hourly rate, for the purposes of sub-cl 7.4.  In that regard, the parties agreed in the court below that the applicant was 'engaged as a casual employee with the [r]espondent in the position of Casual Trainee Custodial Officer', and that he was employed by the hour and paid an hourly rate of pay:  paras 13-14 of the Agreed Facts.  Accordingly, the critical question on which the outcome of this appeal depends is whether, on the proper construction of sub-cl 7.4, the applicant was entitled to be 'paid the hourly rate of pay in the attached relevant Schedule 2', together with a 25% loading on that rate.

84    The principles to be applied when construing an enterprise agreement were set out by the Full Court in WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ) as follows:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context:  City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 (Holmes) at 378 (French J).  The interpretation 'turns on the language of the particular agreement, understood in the light of its industrial context and purpose':  Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J).  The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)).  To similar effect, it has been said that the framers of such documents were likely of a 'practical bent of mind' and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced:  see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).

85    As Bromberg J noted in Target Australia Pty Ltd v Shop, Distributive and Allied Employees' Association [2023] FCAFC 66 at [9], those principles have now been cited by the Full Court on numerous occasions.

86    On a literal reading of the words used in sub-cl 7.4, the answer to the question of whether the applicant was 'paid the hourly rate of pay in the attached relevant Schedule 2' might appear to be relatively straightforward.  Read literally, sub-cl 7.4 provides that every employee to whom the Serco Enterprise Agreement applies and who is engaged on a casual basis is entitled to be paid the hourly rate of pay in Schedule 2 to that agreement, together with a 25% loading on their 'ordinary hourly rate for all hours worked'.  Of course, this reading of sub-cl 7.4 is consistent with the outcome sought by the applicant.

87    The drafting of sub-cl 7.4 troubled the magistrate.  In my view, that was entirely understandable.  Although it is unnecessary to examine the magistrate's reasoning process, her Honour concluded that on a proper construction of sub-cl 7.4, because the applicant was employed on a casual basis in a job classification that appeared in Schedule 1 to the Serco Enterprise Agreement, he was entitled to be paid at the relevant hourly rate of pay provided for in Schedule 1, together with a 25% loading on that rate.  It was on that footing that her Honour found that there had been no underpayment and, consequently, that the respondent had not contravened the Serco Enterprise Agreement or the relevant provisions of the Fair Work Act.

88    At the hearing of the appeal, I raised with the parties a question about whether the number '2' in the text of sub-cl 7.4 may have been inserted because of a drafting error.  In that context I invited the parties to make submissions about whether in the ordinary processes of contractual construction it would be open to read the first sentence of sub-cl 7.4 as if it read 'paid the hourly rate of pay in the attached relevant schedule'.  I raised that as an issue because of the incongruence of the word 'relevant' where there is only one Schedule 2 to the Serco Enterprise Agreement.

89    As this issue had not occurred to the parties and it was not raised at first instance, I granted leave to file further written submissions after the hearing of the appeal.  Having taken those submissions into account, I am of the view that the inclusion of the number '2' at the end of the first sentence in sub-cl 7.4 is an obvious error such that, properly construed, that sentence should be read as follows:

Employees engaged on a casual basis will be employed by the hour and paid the hourly rate of pay in the attached relevant schedule.

90    The Court of Appeal of the Supreme Court of Western Australia observed in Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson t/as Holgerssons Complete Home Service [2019] WASCA 114 at [76] (Buss P, Beech and Pritchard JJA) that there is no doubt that in the process of construing an instrument, a court may correct an obvious error.  The Court of Appeal also noted that the relevant principles to be applied were explained by Leeming JA (with whom Payne and White JJA agreed) in Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11; (2019) 99 NSWLR 317 at [8]-[10] (see also Mahommed v Cox as Administrator of the Deceased Estate of Dixon [2023] FCAFC 107 at [36] (Markovic, Goodman and McElwaine JJ)) as follows:

Two conditions are necessary in order to correct the contractual language in this manner:  (a) that the literal meaning of the contractual words is an absurdity and (b) that it is self-evident what the objective intention is to be taken to have been:  see Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 at [117]-[119], approving National Australia Bank Ltd v Clowes (2013) 8 BFRA 600; [2013] NSWCA 179, where it was stated at [34]:

'[34] … Where both those elements are present … ordinary processes of contractual construction displace an absurd literal meaning by a meaningful legal meaning.'

Likewise, in the United Kingdom, the court must be satisfied both as to the mistake and the nature of the correction:  Pink Floyd Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429 at [21] (Lord Neuberger); Arnold v Britton [2015] AC 1619; [2015] UKSC 36 at [78] (Lord Hodge).

The court must be satisfied of those matters to a high level of conviction.  To use the language of Dixon CJ and Fullagar J in Fitzgerald v Masters at 426-427, it must be 'clearly necessary in order to avoid absurdity or inconsistency'.  As this Court said in Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297 at [18], the test of absurdity is not easily satisfied.  Any question of absurdity or inconsistency must be identified according to established principles, by reference to the text of the agreement as understood in its factual and legal context:  Wyllie v Tarrison Pty Ltd [2007] NSWCA 184 at [46]; Newey v Westpac Banking Corporation [2014] NSWCA 319 at [85].  Courts which are asked to delete, insert or rewrite part of a contract because of what is said to be an obvious error should bear steadily in mind that imperfections and infelicities and ambiguities in contractual language commonly reflect the give and take of negotiations, or the parties' appreciation that some obscurities are incapable of resolution.  As Lord Hoffmann explained, the court does 'not readily accept that people have made mistakes in formal documents':  Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101; [2009] UKHL 38 at [23].

91    The Court of Appeal in Tokio Marine also said that in the process of construction, the test for identification of an error in the parties' contractual language is a stringent one, where it is clearly necessary to avoid absurdity:  Tokio Marine [78].

92    I see no reason why these principles should not be applied with equal force when construing an enterprise agreement such as the Serco Enterprise Agreement.  In that regard, I note that Bromberg J in Target Australia at [56] appeared to accept that a departure from the plain text of an enterprise agreement may be permitted where there is an absurdity, or at least a very serious anomaly.

93    In my view, this stringent test is satisfied in the circumstances of this case.

94    As the applicant appeared to accept in his written submissions filed after the hearing of the appeal, the literal meaning of the first sentence of sub-cl 7.4 is absurd:  para 20(b) of the applicant's further written submissions dated 26 February 2025.  As there is only one 'Schedule 2' to the Serco Enterprise Agreement, and where the word 'relevant' is clearly being used in sub-cl 7.4 to mean 'applicable' or 'appropriate', it is plainly illogical to speak of 'the attached relevant Schedule 2' (emphasis added).

95    As I have already observed, sub-cl 7.1 of the Serco Enterprise Agreement makes it clear that it is open to the respondent to engage an employee to whom the agreement applies on a full time, part time, specific term or casual basis.  In that context, sub-cl 7.4 provides that all employees who are engaged on a casual basis are entitled to be paid at the hourly rate of pay corresponding with the rate to which they would 'ordinarily' be entitled had they been employed other than on a casual basis.  However, for the following reasons, I am of the view that it is self-evident that this rate is not fixed exclusively by reference to Schedule 2, but by reference to one of Schedule 1, 2 or 3, whichever is 'relevant' or applicable to the 'position' or 'job classification' in which the employee is engaged.  Whether a schedule to the agreement is relevant to a position or classification depends on whether such position or classification is listed in that schedule.  The rate so ascertained is then used as the basis for calculating that employee's further entitlement to a 25% loading.

96    One of the evident purposes of the three schedules to the Serco Enterprise Agreement is to identify the employees to whom the agreement applies, and to do so by reference to one of the specific 'positions', 'job classifications' or 'classifications' they have been engaged to carry out, where the terms 'position', 'job classification' and 'classification' are used interchangeably throughout the agreement.  In that regard, sub-cl 2.1 of the Serco Enterprise Agreement relevantly provides that the agreement applies to all persons employed by the respondent 'who are engaged in the job classifications set out in the attached schedules' (emphasis added).  Further, sub-cl 2.3(b) provides that the parties to the agreement include employees whose employment is 'within the scope and application of [that agreement] as outlined in the schedules', where the schedules identify several 'positions' (emphasis added).

97    It is also obvious from the headings of each schedule, and from the positions or classifications referred to in those schedules, that the schedules are also used to allocate employees into different categories, which might be broadly identified as custodial officers, non-custodial employees and casual custodial officers.  By differentiating employees in this way, rates of pay and other conditions of employment are then dealt with by the Serco Enterprise Agreement differently according to the schedule in which each 'position' or 'job classification' appears.  An example of such a provision is sub-clause 17.1, which records that there was to be an increase in various pay rates upon approval of the agreement by the Fair Work Commission:

17.1    Upon approval of this Agreement by the Fair Work Commission, all positions outlined in Schedules 1, 2 and 3 shall receive the following increases:

a)    1.5% effective from the first full pay period to commence on or after date of approval from the FWC.

b)    1.5% effective from the first full pay period to commence on or after 1 July 2018.

c)    The percentage increases referred to in a) and b) above apply directly to the overtime rate, annualised rate and annualised salary used in Schedule 1 of the table of rates attached to the Agreement.

d)    The percentage increases referred to in a) and b) above apply directly to the overtime rate, the base hourly rate and annual salary rate used in Schedule 3 of the table of rates attached to the Agreement.

e)    The percentage increases refer[red] to in a) and b) above apply to the Casual Custodial Officer classification, according to the following formula:

(ii)    determined [sic] the unloaded rate by deducting the 25% casual loading from the Case Management Custodial Officer Year 5 hourly rate;

(iii)    then apply the relevant wage increase (of either a) and b) above) to the unloaded hourly rate.  Then apply the 25% Casual loading.  (emphasis added)

98    There are also several other provisions in the Serco Enterprise Agreement that are clearly only intended to apply to those employees who are engaged in the 'positions' or 'job classifications' in Schedule 1, and several that are intended to apply only to those employees whose positions or classifications are within Schedule 3.

99    None of this should be controversial.  As the Full Court observed in WorkPac at [198]-[199] (Tracey, Bromberg and Rangiah JJ):

Industrial agreements (such as enterprise agreements) will commonly differentiate between groups of employees covered by the agreement because some terms and conditions provided for by the agreement will be applicable to some groups but not others or, if applicable to all, may provide that different rates or conditions apply to different groups.  In those circumstances, an enterprise agreement must assign the employees covered by it into different categories and provide a definition, or identify some other mechanism, for allocating employees into those categories.

That, for instance, is commonly done in relation to rates of pay.  For this purpose an agreement will commonly provide for the categorisation of employees into different competency based classifications.

100    It is in this context that the objective intention of sub-cl 7.4 falls to be determined.

101    It is clear from the introductory words used in sub-cl 7.4 that the employees who are the subject of that sub-clause are 'Employees engaged on a casual basis' (emphasis added).  In that regard, it is important to recall that the word 'Employee' is defined in sub-cl 6.9 to mean 'an Employee of the company whose job classification is within the scope and application of this Agreement'.

102    When the definition of 'Employee' in sub-cl 6.9 is read into the operative text of sub-cl 7.4, and when sub-cl 7.4 is then read with both sub-cl 2.1 and sub-cl 2.3(b) (to which I have already referred), it is self-evident that sub-cl 7.4 was objectively intended to, relevantly, fix the hourly rate of pay of any employee who is engaged on a casual basis in any one of the positions or classifications listed in either Schedule 1, 2 or 3 of the Serco Enterprise Agreement, and to confer on such employees an entitlement to a 25% loading on that rate of pay.  That any employee may be engaged on a casual basis is precisely what is contemplated by sub-cl 7.1.

103    Notwithstanding the literal meaning of sub-cl 7.4, on the proper construction of that provision, the relevant 'hourly rate of pay' that is mentioned in the first sentence of that provision should not be understood as referring only to the hourly rate of pay referred to in Schedule 2.  Instead, it should be understood as referring to the hourly rate of pay that appears in the 'relevant' schedule to the Serco Enterprise Agreement.  That is, that for each employee who is engaged on a casual basis in a position or classification that is listed in one of the three schedules to that agreement, the 'relevant' schedule is the schedule in which that position or classification is listed.

104    The applicant contends that if the number '2' was included in sub-cl 7.4 in error, the 'relevant' schedule for the purposes of sub-cl 7.4 remains Schedule 2.  In that regard, the applicant argues that the reference to 'Custodial Officer' in the title to Schedule 2 is a reference to all custodial employees who are employed in any of the positions or classifications listed in Schedule 1.  However, for the reasons I have set out above, that argument cannot be accepted.  The titles to the schedules to the Serco Enterprise Agreement do not operate by their own force and effect so as to delineate the positions or classifications that are listed in each schedule.  The titles to each schedule are little more than convenient labels that are used to refer to the lists of the positions or classifications that appear in each schedule.  This means that for the purposes of Schedule 2, there is only one position or classification.  That position or classification is a 'Custodial Officer (Casual)'.  That it was objectively intended that there be a discrete position or classification, called a 'Custodial Officer (Casual)', and that the Serco Enterprise Agreement would apply to an employee engaged in that position, is confirmed by the words used in sub-cl 17.1 e), which I have reproduced earlier in these reasons at [97].

105    As the letter of employment and the Agreed Facts amply demonstrate, the applicant was not engaged by the respondent in the position or classification of 'Custodial Officer (Casual)'.  Accordingly, Schedule 2 of the Serco Enterprise Agreement was not the 'relevant' schedule for the purpose of sub-cl 7.4, with the result that the applicant was not entitled to the hourly rate of pay set out in that schedule.

106    In the applicant's further written submissions, the applicant also contended that Schedule 2 is the 'relevant' schedule for the purposes of the applicant by seeking to draw a distinction between the three schedules.  In that respect, the applicant contends that the 'relevant' schedule for all 'non-custodial employees' engaged on a casual basis is Schedule 3, and that the 'hourly rate of pay' for each such employee engaged on a casual basis, for the purposes of sub-cl 7.4, is the hourly rate of pay for the relevant position or classification that is listed in that schedule.  The applicant says that this is because Schedule 3 is the only schedule to the Serco Enterprise Agreement that provides for the hourly rates of pay for 'non-custodial employees'.  In that context, the applicant draws attention to the fact that Schedule 3 is entitled 'Schedule 3 - Non-Custodial Salaries/Wages' (emphasis added), and to the fact that the schedule makes reference to 'wages', which is what casual employees are ordinarily paid.  In that regard, the applicant argues that Schedule 3 expressly contemplates employees engaged in the positions or classifications that it lists might be employed on a casual basis.

107    The applicant then points out that Schedule 1, by comparison, makes no reference to 'wages', but is instead entitled 'Custodial Salaries (Annualised)', and refers to an 'Hourly rate used to calculate Overtime' and to an 'Annualised Hourly Rate'.  On this basis, and in circumstances in which the applicant was clearly not a non-custodial officer, the applicant contends that the 'relevant' schedule for the purposes of sub-cl 7.4 must be Schedule 2.

108    The applicant's further contentions must be rejected.

109    As I have explained, the objective purpose of sub-cl 7.4 of the Serco Enterprise Agreement is to make clear that all employees to whom that agreement applies and who are employed on a casual basis (as contemplated by sub-cl 7.1), are to be employed by the hour.  Further, sub-cl 7.4 confers an entitlement on such employees to receive pay in an amount that is calculated by reference to an hourly rate of pay that corresponds with the position or classification in which they are engaged on a casual basis, where that position or classification appears in Schedule 1, 2 or 3.  Sub-clause 7.4 also confers an entitlement on those employees to which it applies a 25% loading on their ordinary rate of pay.

110    One of the objective purposes of Schedule 2 is to provide for an exception to the otherwise permissive effect of sub-cl 7.1, namely, that employment may be either on a full time, part time, specific term or casual basis.  It provides for a specific exception because it relates to a solitary position or classification in which a person may be employed on a casual basis only.  The only other relevant difference between the schedules is that unlike Schedule 1 and 3, the calculation of the 25% loading on the relevant hourly rate of pay that is applicable to a 'Custodial Officer (Casual)', as required by sub-cl 7.4, is set out in Schedule 2 itself.

111    In contrast to the applicant's construction of sub-cl 7.4, this understanding of that provision favours a coherent and harmonious operation of the Serco Enterprise Agreement as it enables the respondent and the employees to whom that agreement applies the flexibility of options for employment on a full time, part time, specific term or casual basis for every position or classification listed in the schedules.

112    In my view, the applicant was engaged on a casual basis as a 'Trainee Custodial Officer (Induction)' at the relevant time, which is a position or classification listed in Schedule 1.  It follows that, by operation of sub-cl 7.4, properly construed, the applicant was entitled to be paid the corresponding hourly rate of pay for that position or classification that appears in Schedule 1, together with a 25% loading applied to that rate.  The 'hourly rate of pay in the attached relevant schedule', is the same as the 'ordinary hourly rate for all hours worked', which is used to calculate 25% loading referred to in cl 7.4.

113    The magistrate applied the 25% loading to the 'Hourly rate used to calculate Overtime' corresponding with a 'Trainee Custodial Officer (Induction)' in the table in Schedule 1.  It is not clear why her Honour took that approach.  This is because that hourly rate appears more relevant in the context of sub-cl 27.21, which provides:

Custodial Officers performing overtime are eligible to be paid overtime at the overtime rate outlined in the attached schedule, plus overtime penalties applicable to the day in which the overtime was performed.

114    The reference in sub-cl 27.21 to the 'overtime penalties applicable to the day on which the overtime was performed' is a reference to a table that appears between sub-cl 27.18 and sub-cl 27.19 entitled 'Overtime Penalties', which provides that in addition to the relevant 'ordinary time', employees are to be paid an additional percentage of that ordinary time, which varies according to the day on which the overtime is performed.

115    Accordingly, it seems that it would have been more correct for her Honour to have applied the 25% loading to the 'Annualised Hourly Rate', which also appears in Schedule 1.  However, as that rate was the same as the rate applicable for the 'Hourly rate used to calculate Overtime', this issue does not need to be determined.  Whichever rate is used, the outcome is the same.

116    Contrary to the applicant's contentions before the magistrate and on appeal, he was not entitled to the hourly rate of pay that appears in Schedule 2, as he contends.  Only a person who is engaged in the position or classification of a 'Custodial Officer (Casual)' is entitled to the hourly rate of pay that is referred to in that schedule.

117    It follows that while I would allow the application for an extension of time, I would dismiss the appeal.

Associate:

Dated:    14 April 2025