Federal Court of Australia

Cropper v Energy Action (Australia) Pty Ltd (No 2) [2025] FCA 663

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to confer and, if possible, agree upon a form of orders giving effect to these reasons.

2.    In the event that such an agreement is reached, the applicant is to submit the agreed form to the chambers of Justice Snaden.

3.    In the event that no such agreement is reached within 28 days of these orders:

(a)    the parties are, by no later than that day, to file and serve competing written submissions of no more than five pages directed to the calculation of statutory compensation and damages; and

(b)    by no later than seven days thereafter, the parties are to file and serve competing submissions in reply of no more than three pages.

4.    Orders in the nature of final relief directed to all issues arising in the matter other than the imposition of pecuniary penalties will be decided thereafter without further hearing, save insofar as either party might request.

5.    The matter be scheduled for a case management hearing on a date to be fixed.

6.    Costs be reserved.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant, Mr Cropper, is a retired information technology specialist. By an originating application dated 27 January 2021, he moves the court for various species of relief—principally (for present purposes), statutory compensation and damages—relating to what he claims was his employment by the respondent (“EAAPL”), for which he worked between 2005 and 2020. He maintains that, throughout his engagement—and, in particular, upon its termination—EAAPL failed to make various payments to him that it was required to make, either under the terms by which he was engaged or by operation of the Fair Work Act 2009 (Cth) (the “FW Act”). Specifically, he charges EAAPL with having failed to afford him paid public holiday and carer’s leave throughout the period of his engagement (or, more accurately, so much of it that is not otherwise subject to a statute of limitation), and with having failed to pay him upon the termination of his engagement an amount in lieu of reasonable notice thereof and an amount referrable to his unused annual leave accrual.

2    EAAPL defends those claims on multiple bases. In short, it submits that it engaged Mr Cropper not as an employee but as an independent contractor; and, as such, that it is not indebted to him in any of the ways that he alleges. Alternatively, it submits that Mr Cropper served at relevant times as a casual employee, with the same consequence. Insofar as Mr Cropper might be held to have been entitled, contrary to those central contentions, to reasonable notice of the termination of his engagement, EAAPL contends that the period of notice that was reasonable was five weeks. It also submits that it is entitled to set off from the amounts that were actually paid to him any entitlements that Mr Cropper has in respect of paid leave and public holiday pay.

3    For the reasons that follow, I find that:

(1)    Mr Cropper was engaged as a permanent employee between 20 January 2006 and 28 February 2020;

(2)    throughout the period of that engagement (and, for present purposes, so much of it as was not the subject of limitation), Mr Cropper was entitled to absent himself from work without loss of pay on public holidays and occasions where he took carer’s leave;

(3)    upon the termination of his engagement, EAAPL was obliged to pay Mr Cropper:

(a)    an amount equivalent to the value of his accrued but untaken annual leave; and

(b)    an amount in lieu of reasonable notice, which, in the circumstances was three months;

(4)    EAAPL is entitled to set off against its obligation to pay Mr Cropper in lieu of reasonable notice of his dismissal the amount that it actually paid to him in lieu of notice;

(5)    EAAPL is not otherwise entitled to set off from the entitlements recognised above the amounts that it paid to Mr Cropper throughout his engagement; and

(6)    no issue of mitigation arises.

Background

4    It is prudent at this juncture to step out in some detail the nature of Mr Cropper’s engagement and the circumstances that gave rise both to its commencement and its end. That detail emerges from the oral evidence that was given at the trial of the matter by Mr Cropper himself and by Mr Edward James Hanna, EAAPL’s “Director of Commercial”. Very little of that evidence was the subject of challenge and, in the summary that follows, I should be understood to have made factual findings consistent with what’s summarised.

5    Prior to his engagement by EAAPL, Mr Cropper worked in various analyst roles at a business known as Integral Energy (now Endeavour Energy). There, he worked with (amongst others) Mr Hanna, Ms Valerie Duncan and Ms Sue Torville. Their significance will shortly become apparent.

6    Mr Cropper’s time at Integral Energy concluded in February 2002. Thereafter, he turned his hand to freelance contracting, principally assisting clients with the creation or management of databases using a software platform that was (and still is) known as Microsoft Access. To that end, Mr Cropper acquired an Australian Business Number, set up an internet domain and some associated email addresses, and bought himself a “high-spec” computer to assist with the work for which he thereafter marketed himself. He secured work at various client businesses, one of which was IBM.

7    In early January 2005, Mr Cropper had a chance encounter with Mr Hanna, with whom he had previously worked at Integral Energy. Mr Hanna told Mr Cropper that he (Mr Hanna) had taken up employment as EAAPL’s Operations Director. He explained to Mr Cropper that EAAPL was in the business of organising electricity supply contracts for various commercial clients; specifically in the form of “reverse auctions”, by which energy suppliers could bid for the right to supply electricity to EAAPL’s clients. Those auctions, Mr Hanna explained, were conducted online; and EAAPL received commissions in respect of the completed transactions that arose from them.

8    During their encounter, Mr Cropper mentioned to Mr Hanna that he was working with IBM and doing “ad-hoc contract work for Microsoft Access databases for as many organisations as [he] could”. Mr Hanna indicated that EAAPL might have some need for work of that kind.

9    Not long thereafter, Mr Hanna called Mr Cropper to enquire about whether or not he might be able to assist EAAPL with a Microsoft Access system that it was in the process of setting up. Subsequently, the two met and discussed the system—known as EnAct—which, Mr Hanna explained, had become the subject of various concerns within EAAPL. Mr Cropper expressed his interest in assisting with the EnAct project.

10    Mr Hanna then took Mr Cropper to meet with Ms Duncan, who was then engaged as EAAPL’s Chief Executive Officer (and someone with whom Mr Cropper had also worked previously at Integral Energy). The three of them had a discussion about the EnAct system. Mr Cropper was told that it was unclear what volume or nature of work was required to bring it online; but that EAAPL had identified a need to have someone look at it and assist. Mr Cropper again expressed his interest in doing so and the discussion then turned to the terms upon which he might be engaged to that end.

11    Those discussions, though brief, culminated in some agreed terms pursuant to which Mr Cropper would work on the EnAct system. During his oral evidence-in-chief, Mr Cropper described those terms as follows, namely:

And what was discussed about the arrangement between yourself and Energy Action during [the meeting just referred to]?---That I would be doing it on hourly rate. I would come in as a contractor. I would give them invoices from time to time. The – I couldn’t give them a fixed timetable because at that point we didn’t know what the problem was or how long it would take to fix. But I said to them, next week I will come by and start investigating it. I will produce invoices as we go. You can pay those invoices, and it will be $50 an hour.

And was it you that said that your rate would be $50 per hour?---Yes. And they accepted that.

12    A further condition of Mr Cropper’s retention was that he sign a confidentiality agreement, which EAAPL supplied to him. Mr Cropper signed it on 14 January 2005.

13    At the time (January 2005), Mr Cropper was performing ad hoc work for other clients, including IBM, and businesses known as the Crusader Union and Bulk Haulage Australia. Upon his retention by EAAPL, Mr Cropper noted that he would continue with that work and would “juggle” his EAAPL commitments around it. EAAPL (presumably through Mr Hanna and Ms Duncan) indicated no opposition to that proposal.

14    On or about 20 January 2005, Mr Cropper met with Mr Hanna at EAAPL’s Paramatta office. His purpose was to ascertain the scope of the work that he would undertake on EAAPL’s “EnAct” project. Ahead of that meeting, Mr Hanna prepared a typed “Enhancement List”, in which he sought to tabulate, describe and prioritise a number of discrete tasks to which he intended that Mr Cropper would be deployed.

15    Mr Cropper then set about attending to the work that the “Enhancement List” had identified. Although nothing turns on it (nor upon the reasons for it), it quickly became apparent to Mr Cropper that the EnAct project would require more work than he had initially contemplated.

16    Regardless—and true to the bargain that he struck with Mr Hanna and Ms Duncan—Mr Cropper began working on the EnAct system and issued invoices to EAAPL for the time that he spent doing so. He made his own records of the time that he spent attending to EAAPL’s needs—created with the assistance of his own Microsoft Access database, which he called “Job Control”—and the invoices that he rendered were consistent with those records.

17    The first invoice that Mr Cropper issued to EAAPL was dated 23 February 2005. It covered work that he performed between 20 January and 21 February of that year, which totalled 43 hours. The invoice was presented on Mr Cropper’s letterhead, which set out his name, address, contact details and Australian Business Number (or “ABN”). Mr Cropper was not registered for goods and services tax at that juncture; and, thus, the invoice amount—$2,150.00—was simply the product of the number of hours that he had performed (43) and the agreed hourly rate ($50.00).

18    Throughout the first few months of his engagement, Mr Cropper spoke regularly with Mr Hanna about his work. Generally, those discussions touched upon actionable issues that Mr Cropper had identified and Mr Hanna’s input as to the actions that he recommended. Subject to those discussions, Mr Cropper set about his work and continued to invoice EAAPL for the time that he spent doing so. He continued to undertake work for other clients as well.

19    There is no doubt that, throughout the initial phases of his retention by EAAPL, Mr Cropper was engaged as an independent contractor, rather than as an employee. He worked the hours that he considered were necessary and rendered invoices for his time at the agreed rate. As the work continued, however, it became apparent to Mr Cropper that his engagement would not be as fleeting as was initially thought.

20    In January of 2006—and in consequence of the ongoing nature of the work that he was performing—Mr Cropper had a discussion with Ms Torville. Ms Torville was then engaged (formally or otherwise) as Ms Duncan’s personal assistant; but, more broadly, was responsible within EAAPL for all administration work, including accounting and payroll. It was to Ms Torville that Mr Cropper issued his invoices and it was Ms Torville who saw to their payment.

21    During their discussion, Mr Cropper told Ms Torville that he considered that his engagement “seemed to be ongoing”, with “no clear end”. Plainly, given how long ago the conversation took place, Mr Cropper was unable to recall it in precise detail; but he recalls that he asked Ms Torville whether it would be feasible—and simpler for everybody—if he could be added to EAAPL’s payroll. Ms Torville indicated that she would make enquiries in that regard.

22    Mr Cropper explained to the court why it was that he was interested in being added to EAAPL’s payroll. The EnAct project in respect of which he had initially been engaged had, by then, involved much more work than he had first contemplated and appeared likely to require further work into the foreseeable future (indeed, if anything, the work appeared to be expanding). The income that it had generated for him was approaching the threshold beyond which he would need to register and account for goods and services tax. Mr Cropper surmised that he could avoid having to register for GST (and the other administrative burdens with which such registration is usually associated) if the basis of his retention was altered.

23    It is unclear whether Ms Torville spoke to Ms Duncan (or anybody else) about adding Mr Cropper to EAAPL’s payroll. Neither gave evidence at the trial of the application and Mr Cropper was unable to recall whether he was ever told about any such discussion. Nonetheless, it is clear that, from immediately after his discussion with Ms Torville, Mr Cropper’s retention underwent some profound administrative changes.

24    Not the least of them was that EAAPL began issuing Mr Cropper with monthly “Pay Advice[s]”, which recorded the withholding of income tax and superannuation contributions. The first such “Pay Advice” was dated 1 February 2006. Mr Cropper told the court that it was given to him by Ms Torville, although he could not recall any discussion between them at the time that she handed it to him. It pertained to the work that Mr Cropper had performed in January 2006: specifically, 98.05 hours. The “Pay Advice” recorded a “Calc. Rate” for that time of $45.87, generating a gross amount that it recorded as “Wages” of $4,497.55. It then recorded two deductions: $1,083.00 for “PAYG Withholding” and $404.78 for “SGC Superannuation”; as well as a “Net Pay” figure of $3,414.55 (being the difference between the “Wages” amount and the amount of “PAYG Withholding”). It also recorded, by membership number, Mr Cropper’s “AMP Flexible Lifetime” superannuation account, which he had established prior to commencing work with EAAPL.

25    The 98.05 hours of work to which that 1 February 2006 “Pay Advice” appears to have pertained were themselves the subject of an invoice that Mr Cropper rendered in January 2006. That invoice totalled $4,902.50 (being 98.05 hours multiplied by $50 per hour). Although the mathematics do not precisely compute, it appears that the amounts recorded in the “Pay Advice” of 1 February 2006 were calculated on the basis of a theoretical gross $50-per-hour figure, from which the recorded deductions were then made.

26    Between February and July 2006, Mr Cropper continued to request and receive payment for his work in that way: that is to say, he continued to render invoices for the time that he had spent (calculated on a gross $50-per-hour basis) and he continued to receive “Pay Advice[s]” that recorded payment to him of lesser amounts that accounted for “PAYG Withholding” and “SGC Superannuation”.

27    Following the completion of the financial year on 30 June 2006, EAAPL issued Mr Cropper with a group certificate (an ancestor of what the Australian taxation system now knows as “income statements”), which recorded what it had paid to him since (and including) the 1 February 2006 “Pay Advice”. Mr Cropper could not recall how EAAPL had come to obtain his tax file number but it is evident that he must have supplied it at some point. Having apparently been lost to history, the group certificate for the year ending 30 June 2006 was not received into evidence; but Mr Cropper explained to the court that, upon its receipt, he considered that the changes that EAAPL had introduced in January 2006 to how he was retained and paid were “permanent”. His opinion in that regard has no bearing on the present matter other than to serve as context for the events that later transpired.

28    Prior to that receipt of a group certificate in 2006, Mr Cropper made his own arrangements to account for and pay the income tax payable on what he had earned (including what he had earned from EAAPL). For the year ending 30 June 2006, that practice was amended to accommodate for the reality that, for approximately half of it, he received amounts that were net of sums withheld by EAAPL for “pay as you go” income tax purposes.

29    Thereafter (that is to say, after Mr Cropper received his first group certificate from EAAPL), Mr Cropper ceased his practice of rendering invoices for the time that he spent working for EAAPL. He continued to maintain records of that time in his “Job Control” database; and, for payment purposes, he continued to provide EAAPL with monthly summaries of it. Throughout the remainder of 2006, he also continued to perform ad hoc work for other clients, which he separately invoiced.

30    Something should be said about Mr Cropper’s “Job Control” records. Throughout the course of his retention by EAAPL, Mr Cropper had a practice of recording his hours of work (both for EAAPL and the small number of other clients for which he performed ad hoc services). He did so by making entries in his “Job Control” database that recorded (for any given client on any given day) the date and number of hours that he worked, whether or not the day was a weekday, weekend or public holiday, and the gross hourly rate that he was to be paid for that work. The database constituted by those entries was then able to be interrogated so as to produce records specific to EAAPL or other clients, some of which were received into evidence at the trial.

31    Mr Cropper continued to perform work for EAAPL throughout the second half of 2006. On 13 December 2006, he had a meeting with Ms Duncan and Mr Hanna at EAAPL’s Paramatta office, during which his remuneration and work patterns were discussed. Mr Cropper told the court that, by the end of 2006, he was consistently working in the vicinity of 35 hours per week for EAAPL, and that that had increased from earlier in the year, when it averaged around 28 hours per week. In the meeting of 13 December 2006, Mr Cropper requested that his hourly rate (or gross hourly rate) be increased from $50 to $60. It was agreed that his gross hourly rate would increase to $55 in the new year (2007), and would be increased further to $60 with effect from 1 July 2007.

32    The following day (14 December 2006), Mr Cropper wrote a letter to Ms Duncan and Mr Hanna confirming what had been agreed. Excluding formalities, it read as follows:

Thank you for your time yesterday when we reviewed our commercial arrangements. As requested, here is a summary of the outcome.

•    Our existing arrangement has been in place since January 2005.

•    Effective 1st January 2007, the hourly rate is to be $55.00 …

•    … with the intention of including a rate of $60 in the budget for the financial year starting July 2007.

•    Options for restructuring the arrangement to be considered with the aim of minimising overheads.

33    Those agreed changes were brought into effect as promised in 2007. Mr Cropper continued to perform his work for EAAPL in accordance with the administrative arrangements that had prevailed in the second half of 2006. He continued to maintain records of the time that he spent on his work, summaries of which he provided to EAAPL for payment purposes. EAAPL appears to have continued to provide him with “Pay Advices” relating to his work. Following completion of the 2006-07 financial year, he received a group certificate, which identified the gross amount that EAAPL had paid him ($79,113.00) and the amount that it had withheld for PAYG taxation purposes ($20,700.00). Mr Cropper’s evidence was that the duties that he discharged “expanded” over the course of 2007, most significantly through his liaising on EAAPL’s behalf with external contractors, which were brought in to assist with the building of the EnAct database.

34    As the demands of his work with EAAPL grew, Mr Cropper’s capacity to work for other clients dwindled. In September 2007, he ceased his work with IBM altogether.

35    In early 2008, Mr Cropper had another discussion with Ms Duncan and Mr Hanna about the demands of his work. It was agreed that Mr Cropper would assume overall responsibility for EAAPL’s information technology functions. Later (after he was given some business cards), he learned that he had been assigned the job title, “Data Management and IT Manager”. Mr Cropper, Ms Duncan and Mr Hanna further agreed that EAAPL would employ an “assistant developer” to work at Mr Cropper’s direction.

36    Consistent with what had been agreed, Mr Cropper set about putting together in early 2008 a job description and an advertisement for the “assistant developer” position. That position was filled in February 2008 by a new contractor, Mr Omar El Fakih.

37    In mid-2008 (most likely in July), Mr Cropper had a further discussion with Ms Duncan and Mr Hanna about his role at EAAPL. He again sought an increase in his gross hourly rate, from $60 to $70. That was agreed. In evidence before the court was a “Pay Slip” dated 28 November 2008, which recorded Mr Cropper’s “Annual Salary” as “$123,302.14” and his “Hourly Rate” as “$64.22”; the latter apparently representing the newly agreed gross hourly rate of $70, reduced so as to account for superannuation contributions that EAAPL continued to make into Mr Cropper’s AMP superannuation account.

38    In that same financial year (2008-09), Mr Cropper received the first of what was to become a series of annual performance review documents. It is unnecessary to delve to any extent into the content of those documents, save to note that they identified aspects of Mr Cropper’s work behaviours and capabilities, upon which (like most performance reviews) he was assessed by means of a rating system. One of them (pertaining to Mr Cropper’s work in the year to 30 June 2017) made reference to Mr Cropper’s start date at EAAPL being 20 January 2006 and recorded an “Employee ID” number that had apparently been assigned to him.

39    In 2009, Mr Troy Davis—who, until then, had served EAAPL in a role that placed him in charge of its computer hardware—assumed the role as manager of its information technology more broadly. So he told the court, Mr Cropper “…went back to the role [that he] had previously of being an access developer”.

40    It is a matter of record that Mr Cropper’s engagement at EAAPL continued through until 2020. Throughout that time, various increases were made to his remuneration. One was the subject of correspondence that was sent to him on 22 September 2016 by EAAPL’s then chief executive officer, Mr Scott Wooldridge, which referred to an increase to Mr Cropper’s “base salary” and to “[a]ll other terms and conditions of [his] employment remain[ing] unchanged”.

41    Throughout the period of his engagement, Mr Cropper continued to account and be paid for the hours that he worked. Prior to 2015, that was done using his “Job Control” system; but, thereafter, it appears to have been formalised via the introduction of EAAPL timesheets.

42    The payments made to Mr Cropper continued to be net of taxation and superannuation contributions. It was accepted that, despite paying him sums that accumulated beyond the liability thresholds applicable to the collection and payment of goods and services tax, EAAPL at no time claimed, as input tax credits against its own GST liability, any of the amounts that it paid to Mr Cropper.

43    On occasions throughout his engagement, Mr Cropper took leave, both annual and personal. That process appears to have been largely informal, involving Mr Cropper telling his superiors—initially, Mr Hanna but later Ms Duncan and Mr Davis—of his intention to take leave and their approval of it. Admitted into evidence was a bundle of email communications of various dates, by each of which Mr Cropper gave notice of his intention to take leave in one form or another. It does not appear that there was ever any resistance (certainly no serious resistance) to his doing so. He was not paid anything for any of the periods of leave that he took.

44    Also in evidence were various communications concerning invitations that EAAPL extended to Mr Cropper (amongst others) to participate in, initially (in 2011), an initial public offering of shares in EAAPL; and, later (in 2017), a “Tax Exempt Employee Share Plan”. Mr Cropper’s participation in that latter scheme ultimately did not go ahead, apparently because EAAPL—acting then via the agency of Ms Madeline Sedrak, who had assumed the role of Human Resources Executive Manager—took the view that the plan was only open to employees and that Mr Cropper was not an employee.

45    Ms Sedrak did not give evidence at the trial of Mr Cropper’s application. Nonetheless, Mr Cropper’s evidence discloses how it came to be that she took the view that she took in 2017 about the status of his engagement. It appears to be as early as 2014 that Ms Sedrak came to favour the notion that Mr Cropper was, in truth, engaged as an independent contractor. Mr Cropper recalls that both she and Mr Davis had, at around that time, referred to him as such. In July 2014, Mr Cropper raised with Ms Sedrak the possibility that he might move from an hourly wage to an annual salary, “…in order to normalise things to some extent”. Although Ms Sedrak appeared to be receptive to that possibility, it does not appear that it was ever actioned.

46    Nonetheless, Mr Cropper did have occasion to discuss with Ms Sedrak the basis of his retention. In 2016, after he received from Mr Wooldridge the correspondence referred to above (at [40]), confirming an increase to his “base salary”, Mr Cropper enquired of Ms Sedrak whether he remained engaged on the basis of an hourly wage or an annual salary. According to Mr Cropper, Ms Sedrak then confirmed that he would continue to be paid at an hourly rate.

47    That led to a discussion as between Mr Cropper, Ms Sedrak and Mr Matthew George, who was at that time engaged as EAAPL’s Chief Information Officer and was the contact within EAAPL to whom Mr Cropper reported. That appears to have taken place at some point in late 2016 or early 2017. As best as Mr Cropper could recall, it was agreed that Ms Sedrak would make enquiries about the basis upon which EAAPL had initially engaged Mr Cropper.

48    Those enquiries appear to have been the catalyst behind a series of email communications in early 2017. On Friday, 10 February 2017, Ms Sedrak sent an email to Mr Cropper with the subject header “John Cropper | Work Pattern”, which read as follows:

Hi John

As discussed, can you please confirm the following?

1.    When you first joined Energy Action, how many days per week were you working for us?

2.    What approximate date did you work for Energy Action 100% of your time?

Kind regards

Maddy

49    A little over a week later, Mr Cropper responded as follows:

Hi Maddy,

After some digging, here is a summary of my first few years with Energy Action.

•    First discussions re EnAct in Jan 2005, with first release of EnAct in March 2005 and development continuous from that time. At the time I was working full-time at IBM.

•    Came on to the Energy Action payroll in Jan 2006, part-time hourly paid, when it was obvious that the work at Energy Action would be ongoing and significant.

•    Resigned from full time employment with IBM April 2006 to enable full time commitment to Energy Action, where I would be able to make a real difference, unlike my contribution to a company the size of IBM.

•    Hours at Energy Action during first few years:

•    Work outside Energy Action:

•    Work with IBM detailed above.

•    All other such work was also from arrangements that pre-dated January 2005 when I started work with Energy Action.

•    Other work was scaled down progressively with last arrangement ending Sept 2013.

Hope this helps,

John

50    On Thursday, 23 February 2017, Ms Sedrak sent a further email in the following terms:

Thanks John, this is really helpful.

I have one more question. When did you stop invoicing Energy Action and we started paying you directly through the payroll?

The last invoice from your company (Logged Hours schedule listing Energy Action as your client) was December 2010.

Kind regards

Maddy

51    On Monday, 27 February 2017, Mr Cropper responded:

Hi Maddy,

I went on to the payroll in January 2006. Up until then I was providing monthly invoices. (I had an ABN, but not a company. I was just a sole trader).

At the time, Energy Action did not have a work log system nor did they give me a timesheet to fill in so I just kept using my own work log system to record my hours and simply printed out an existing report each month to serve as a timesheet. Then there was a period of no timesheet, just an email with total hours. It was not until relatively recently (2015) that Energy Action provided me with its own timesheet format and even more recently that we in IT started entering our hours in a company work log system.

Cheers,

John

52    Thereafter, the issue appears to have gone somewhat stale. It did not rear itself again until August 2017, after Mr Cropper was invited to participate in the “Tax Exempt Employee Share Plan” referred to above (at [44]). After expressing his interest in participating in that plan, Mr Cropper received an email from its administrator, Link Group, by which he was informed that he was “…not on the list of employee[s] eligible for the 2017 offer”.

53    On Monday, 28 August 2017, he emailed Ms Sedrak as follows:

Hi Maddie,

As per the email from Link below, it seems I am missing from the list of employees eligible for the share offer. Is there anything I need to do to get that fixed or can you help, please?

Thanks,

John

54    Later that morning, Ms Sedrak replied:

Hi John

Unfortunately this offer is only available to permanent full time and permanent part time staff. As a contractor you’re not eligible to participate in this share offering.

Kind regards

Maddy

55    Mr Cropper sent a follow-up email later that day:

Thank you for getting back to me, Maddy, though as you know I’m actually not sure that that is the case. Was that what you found when you checked into it at the beginning of the year? I don’t think I had heard the outcome from those discussions.

Cheers,

John

56    Ms Sedrak responded later still:

Hi John

Your employment status has been confirmed as that of a contractor. As you have been remunerated as a contractor for all hours worked since joining Energy Action you’re deemed a contractor not an employee.

Kind regards

Maddy

57    The following afternoon, Mr Cropper sent a further email to Ms Sedrak:

Thanks, Maddy. I appreciate you passing that on back to me although I’m not quite sure what it means - it does seem a bit circular, doesn’t it?

And it also seems strange that I was eligible to be offered shares as an employee at the time of our IPO back in October 2011 but not now?

Is there any chance they might reconsider before the share offer closes on Friday?

Cheer[s],

John

58    It appears that Ms Sedrak suggested—possibly in response to his email of 29 August 2017—that Mr Cropper might benefit from getting some advice about his situation, or otherwise from consulting public resources available on the Australian Taxation Office or Fair Work Australia (as the Fair Work Commission was once known) websites. Regardless, the issue of Mr Cropper’s engagement appears once again to have fallen dormant, at least until January 2018, when Mr Cropper sent the following email to Ms Sedrak:

Hi Maddy. Welcome back!

It has been some time since we last touched on this subject back in August/September and you advised that I might find it worthwhile to check out such sources as the FWA and ATO websites or even to get some independent advice to help me to better understand my position.

After a very busy 2nd half of 2017, I have finally been able to get some further research done, including reviewing the sources you suggested. Everything I am finding is indicating that no single factor determines whether a person is an employee or a contractor - the various sources all agree that there is a range of considerations to be taken into account and on balance, I am not sure that these support the company’s current view.

Happy to sit down with you and run through them if you’d like.

Cheers,

John

59    On the evidence before the court, it does not appear that there were any further discussions concerning the nature of Mr Cropper’s engagement.

60    That notwithstanding, it was not until a further two years elapsed that that engagement was brought to end. On 18 February 2020, Mr Cropper was summoned to a meeting with Mr Davis and Ms Sedrak, whereupon he was told that EAAPL no longer had need for an Access developer and, that being so, that his engagement would be terminated. Mr Cropper was told that EAAPL would pay him four weeks’ pay in lieu of notice, an additional week’s notice on account of his being more than 45 years of age and a payment equivalent to 12 weeks’ long service leave. Mr Cropper was asked whether he would prefer to work throughout his period of notice and he undertook to get back to Mr Davis and Ms Sedrak once he had had an opportunity to consider that possibility.

61    Two days later (on 20 February 2020), Mr Cropper had a further discussion with Mr Davis and Ms Sedrak, during which he was given a document headed “Transaction Report”, which recorded the amounts that EAAPL proposed to pay to him upon the termination of his engagement. That document recorded that Mr Cropper would be paid a gross amount of $42,730.70 as an “ETP – Taxable (Post June 83) Code: O” payment, which appears to be—indeed, is indisputably—a reference to what the Australian Taxation Office designates as an “employment termination payment”. That gross amount comprised $30,162.85 (being equal to “456” multiplied by an hourly rate of “$66.1466”), which was described as “Gratuity”; and $12,567.85 (being equal to “190” multiplied by the same hourly rate), which was described as “In Lieu of Notice”. From the total amount, the “Transaction Report” indicated that $7,264.00 would be withheld for tax, leaving a “Net Pay” amount of $35,466.70. Additionally, the document recorded a contribution for “Super” of $1,193.95, being 9.5 per cent of the $12,567.85 payable “In Lieu of Notice”.

62    It appears that the “Transaction Report” that was given to Mr Cropper on 20 February 2020 was simply a record of what EAAPL proposed to pay him upon his departure; and that EAAPL, for reasons neither apparent nor material, expected Mr Cropper to indicate whether or not he agreed to that proposal. On Tuesday, 25 February 2020, Mr Davis sent Mr Cropper an email in the following terms:

Hi John

Have you been able to come to a position regarding the termination payment and finish date, I am expecting Maddy to chase me for an update shortly.

Kind regards

Troy Davis

63    Mr Cropper then went to see Mr Davis and told him that he (Mr Cropper) did not accept the offer (or what he perceived, perhaps correctly, to be EAAPL’s offer in the form of the “Transaction Report”). Three days later (on Friday, 28 February 2020), Mr Cropper met again with Mr Davis and Ms Sedrak, and was told that his engagement with EAAPL would end immediately. Mr Cropper was handed correspondence of that date that was signed by then Chief Executive Officer, John Huggart, which recorded as follows:

Dear John

Your Contractor Agreement with Energy Action (Australia) Pty Ltd

We refer to the above matter and discussion with your manager, Troy Davis and Madeline Sedrak, Head of Human Resources on Tuesday 18 February 2020 and the CEO update to all staff on Thursday 20 February 2020. We confirm that on those days, you and other staff were consulted about upcoming changes to the business.

The purpose of this letter is to confirm that as a consequence of the Business Transformation Program going live, the Company no longer requires the services of a Senior Application Developer.

At your request, we reviewed our organisational structure and future IT needs and regretfully advise that the Company does not have any associated entities into which you could be assigned and nor does it have any suitable alternative positions available.

Therefore, we will be terminating your engagement as a contractor.

However, we understand your concerns about sufficient time to find alternative work, and to assist you in this difficult period, and as a gesture of good faith for your years of dedication as a contractor to the Company, we will pay you the same amounts that we would pay to our permanent employees in this position, despite you being a contractor and therefore not having these entitlements:

•    5 weeks’ notice of termination pay;

•    12 weeks’ long service leave; and

•    12 weeks’ redundancy pay.

You are not required to work through the entire 5 week notice period. Your manager, Troy Davis, will discuss an appropriate handover period with you in order to determine your last day in the office. You will be paid your ordinary wages up to and including your last day in the office, and will be paid in your final pay, the remainder of your notice period, up to and including 3 April 2020.

To further support you during this transition period, the Company has also provided counselling services for you with an external outplacement company. Their contact details are contained in this letter and you can reach out to them when you are ready.

The Company reminds you of your employment obligations with respect to the Company’s confidential information and maintaining the confidentiality of the Company’s business affairs. Note, these confidentiality obligations continue to apply to you despite the cessation of your employment with the Company, and will continue to apply during the notice period.

As advised previously, outplacement services are available for your use immediately to assist you with this career transition. Our contact at Outplacement Australia is Adrian Kelly and you can reach him on 0435 002 960 any time, or SMS if you’d like Adrian to call you.

Please contact Madeline Sedrak, Head of Human Resources on 02 9633 6408 if you wish to discuss the content of this letter.

Yours sincerely

John Huggart

Chief Executive Officer

64    At that same meeting (of 28 February 2020), Mr Cropper was given another “Transaction Report” that set out a revised schedule of payments that EAAPL proposed to pay to Mr Cropper. Whereas the original document had recorded a “Gratuity” based on 456 hours, the updated version was increased to 912 hours and there was a commensurately larger amount reserved for “Tax”.

65    Mr Cropper’s lengthy engagement with EAAPL drew to a close on Friday, 28 February 2020. A few weeks later, he received from EAAPL a record of the amounts that had been paid to him, which reflected the “Transaction Report” that he was given on his final day. That document identified him by reference to an “Employee” identification number “2-104” and nominated EAAPL as his “Employer”.

66    Mr Cropper’s records indicate that, for the entirety of his engagement, his weekly hours of work fluctuated. In the four weeks between (and including) Saturday, 1 February and Friday, 28 February 2020, those same records indicate that he worked a total of 100.25 hours; or a weekly average of just over 25 hours. For each, it appears that he received a gross amount of $72.43, from which other amounts for taxation and superannuation were deducted. That notwithstanding, it appears that he was paid, upon the termination of his engagement, amounts in lieu of notice and by way of “gratuity” that were calculated (at least nominally) on the basis of 38-hour weeks: 190 hours for the former (being five weeks at 38 hours per week); and 912 hours for the latter (being 24 weeks at 38 hours per week, presumably for the 12 weeks’ long service leave and 12 weeks’ redundancy pay referred to in the correspondence of 28 February 2020).

The competing cases

67    Mr Cropper’s claims in the present matter all hinge upon the proposition that he was, from January 2006, engaged by EAAPL pursuant to a contract of employment. By his amended statement of claim dated 16 November 2021, Mr Cropper advances four claims in that regard, namely that:

(1)    upon the termination of his employment, he was entitled by operation of ss 44(1) and 90(2) of the FW Act to receive—but EAAPL did not pay to him—amounts equal to the value of his untaken annual leave accrual, which he calculates to be 54.97 weeks;

(2)    throughout his employment (or, at least for the six years prior to the commencement of this action), he was entitled by operation of ss 44(1), 96(1) and 116 of the FW Act to be absent from work without loss of pay on the occasions that he took personal leave or was absent from work on public holidays; but EAAPL wrongly withheld those payments from him; and

(3)    upon the termination of his employment, he was entitled to receive—but EAAPL did not pay to him—an amount in lieu of reasonable notice thereof, which he calculates as 12 months (or, in the alternative, lesser periods of six or three months).

68    Mr Cropper’s annual leave, personal leave and public holiday claims are pressed on the basis that he was engaged as a permanent (rather than casual) employee.

69    EAAPL maintains by way of defence that Mr Cropper was not, at any time, engaged pursuant to a contract of employment; and that, that being so, none of the claims that he presses can be sustained.

70    In the alternative—that is to say, if Mr Cropper was engaged pursuant to a contract of employment—EAAPL maintains:

(1)    that he was employed on a casual basis, such that he did not accrue any entitlements to annual leave, personal leave or public holiday pay;

(2)    that he was not entitled to reasonable notice of the termination of his engagement because no such term was implied by law or otherwise into that contract; and

(3)    in any event, that the sums that it paid to Mr Cropper throughout the course of his engagement were sufficient and intended to meet any obligations that it owed to him by force of the FW Act, such that it is entitled to set off against those latter entitlements what was, in fact, paid and received.

71    EAAPL also charges Mr Cropper with a failure to mitigate any loss that is said to have resulted from its failure to afford him reasonable notice of the termination of his engagement.

72    In the event that the court were to accept that EAAPL wrongly withheld from him payments that it was obliged to make under the FW Act in relation to annual leave, personal leave and public holiday pay, Mr Cropper also moves for the imposition of pecuniary penalties against it pursuant to s 546 of the FW Act. As is common in such matters, the issue of penalties will fall to be addressed separately from the issue of EAAPL’s liability as alleged.

The statutory framework

73    Chapter 2 of the FW Act is entitled “terms and conditions of employment”. It comprises multiple parts, only two of which—pt 2-1 and pt 2-2—are of any moment presently.

74    Part 2-1 of the FW Act is entitled, “core provisions for this chapter”. Amongst others, it contains s 44, which, at all material times, provided as follows:

44 Contravening the National Employment Standards

An employer must not contravene a provision of the National Employment Standards.

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

75    Part 2-2 of the FW Act is entitled, “the national employment standards”. It makes provision for the series of entitlements to which s 44 of the FW Act pertains. Subject to exceptions, they must be paid to “national system employee[s]”. It is not controversial to observe that, to the extent that EAAPL engaged Mr Cropper pursuant to a contract of employment, he thereby qualified as a “national system employee”. To put it another way: if he was an employee at all, then he was a “national system employee” for the purposes of the FW Act.

76    Three of the “national employment standards” assume relevance to this matter; specifically those for which provision is made by divs 6, 7 and 10 of pt 2-2.

77    Division 6 of pt 2-2 of the FW Act is entitled, “Annual leave”. Sections 86, 87 and 88 of the FW Act establish the entitlement that “national system employee[s]” have to accrue and take annual leave. They relevantly provided as follows, namely:

86 Division applies to employees other than casual employees

This Division applies to employees, other than casual employees.

87 Entitlement to annual leave

Amount of leave

(1)    For each year of service with his or her employer, an employee is entitled to:

(a)    4 weeks of paid annual leave; or

(b)    5 weeks of paid annual leave, if:

(i)    a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

(ii)    an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

(iii)    the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).

Note:    Section 196 affects whether the FWC may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Accrual of leave

(2)    An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

Note:    If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.

…

88 Taking paid annual leave

(1)    Paid annual leave may be taken for a period agreed between an employee and his or her employer.

(2)    The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

78    Section 90 of the FW Act regulates the payment of amounts referrable to annual leave. It provides (and provided) as follows, namely:

90 Payment for annual leave

(1)    If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

(2)    If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

79    Division 7 of pt 2-2 of the FW Act is entitled, “Personal/carer’s leave, compassionate leave and paid family and domestic violence leave”. Of relevance presently is sub-div A, which is entitled “Paid personal/carer’s leave”. It applies to employees who are not casual employees: FW Act, s 95. Sections 96 and 97 of the FW Act establish the entitlement that Mr Cropper claims was wrongly withheld from him. At the times of relevance to this matter, they provided:

96 Entitlement to paid personal/carer’s leave

Amount of leave

(1)    For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.

Accrual of leave

(2)    An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

97 Taking paid personal/carer’s leave

An employee may take paid personal/carer’s leave if the leave is taken:

(a)    because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee;

or

(b)    to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

(i)    a personal illness, or personal injury, affecting the member; or

(ii)     an unexpected emergency affecting the member.

Note 1:    The notice and evidence requirements of section 107 must be complied with.

Note 2:    If a female employee has an entitlement to paid personal/carer’s leave, she may take that leave instead of taking unpaid special maternity leave under section 80.

80    Section 99 of the FW Act makes provision for the payment of those entitlements. It provides (and provided):

99 Payment for paid personal/carer’s leave

If, in accordance with this Subdivision, an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

81    Division 10 of pt 2-2 of the FW Act is entitled, “Public holidays”. Section 114 of the FW Act provides that an employee (which is to say, a national system employee) is entitled to be absent from his or her employment on a day or part-day that is a public holiday. Section 115 of the FW Act defines (in terms that don’t require elaboration presently) what is meant by the phrase “public holiday”. Section 116 of the FW Act provides (and provided) as follows:

116 Payment for absence on public holiday

If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day.

Note:    If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.

82    There is a fourth “national employment standard” that assumes peripheral relevance to this matter. Division 11 of pt 2-2 of the FW Act is entitled, “Notice of termination and redundancy pay”. Subdivision A thereof is entitled, “Notice of termination or payment in lieu of notice”. Amongst other things, it prohibits an employer from terminating a national system employee’s employment without first giving the employee written notice thereof: FW Act, s 117(1). Additionally, it must provide either a period of notice not less than what the FW Act prescribes, or payment in lieu of that period of employment: FW Act, s 117(2). For an employee who is over 45 years of age and has more than five years’ permanent (that is, non-casual) service, the prescribed period is (and relevantly was) five weeks: FW Act, s 117(3).

83    Section 15A of the FW Act also assumes some significance in the present matter. It defines the circumstances in which an employee qualifies as a casual employee. It was introduced into the FW Act after Mr Cropper’s engagement with EAAPL came to an end; and the terms in which it was initially enacted have since been amended. Nonetheless (and for reasons that might soon become apparent), it is convenient to replicate the form that it assumed when first introduced:

15A Meaning of casual employee

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

84    Section 15A in that form was incorporated into the FW Act by the passage of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth). That same enactment introduced a new pt 10 of sch 1 to the FW Act, which is entitled, “schedule 1 — application, saving and transitional provisions relating to amendments of this act”. Clause 46(1) of that schedule (to which effect is given by s 795A of the FW Act) provides (and provided):

46 Application of certain amendments

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

85    Section 15A of the FW Act is no longer in the form that it assumed when it was first enacted. It was amended with effect from 26 August 2024; but that amendment did not operate with the same retrospective effect as did the provision that it replaced. The section in its original (and since repealed) form is the version upon which hinges the proper characterisation of Mr Cropper as a “casual employee” (if, that is, he was an employee at all). As much was the conclusion to which McElwaine J was drawn (and with which Rangiah and Downes JJ agreed) in Jess v Cooloola Milk Pty Ltd (2022) 292 FCR 284, 312-3 [112]-[115]. There is no controversy presently that that is so.

86    Also presently relevant (or potentially so) is s 20 of the FW Act, which provides (and provided) as follows, namely:

20 Meaning of ordinary hours of work for award/agreement free employees

Agreed ordinary hours of work

(1)    The ordinary hours of work of an award/agreement free employee are the hours agreed by the employee and his or her national system employer as the employee’s ordinary hours of work.

If there is no agreement

(2)    If there is no agreement about ordinary hours of work for an award/agreement free employee, the ordinary hours of work of the employee in a week are:

(a)    for a full-time employee—38 hours; or

(b)    for an employee who is not a full-time employee—the lesser of:

(i)    38 hours; and

(ii)    the employee’s usual weekly hours of work.

If the agreed hours are less than usual weekly hours

(3)    If, for an award/agreement free employee who is not a full-time employee, there is an agreement under subsection (1) between the employee and his or her national system employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work, the ordinary hours of work of the employee in a week are the lesser of:

(a)    38 hours; and

(b)    the employee’s usual weekly hours of work.

Regulations may prescribe usual weekly hours

(4)    For an award/agreement free employee who is not a full-time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subsections (2) and (3).

87    The Fair Work Regulations 2009 (Cth) (“FW Regulations”) make provision as contemplated by s 20(4). Regulation 1.11 provides (and provided) as follows, namely:

1.11 Meaning of ordinary hours of work for award/agreement free employees

(1)    For subsection 20(4) of the Act, this regulation provides for the determination of hours that are taken to be the usual weekly hours of work of an award/agreement free employee who:

(a)    is not a full-time employee; and

(b)    does not have usual weekly hours of work.

Note:    Under section 20 of the Act, the usual weekly hours of work of an award/agreement free employee are relevant to establishing the employee’s ordinary hours of work.

(2)    To work out the usual weekly hours of work for an employee who has been employed by the employer for at least 4 weeks:

(a)    identify the total number of hours that the employee has worked during the previous 4 completed weeks; and

(b)    divide the result by 4.

(3)    To work out the usual weekly hours of work for an employee who has been employed by the employer for less than 4 weeks:

(a)    identify the total number of hours that the employee has worked during the period; and

(b)    divide the result by the number of completed weeks for which the employee has been employed by the employer.

Relevant principles of law

88    Very little of substance separates the parties as to the principles of law that should guide the court in determining the matters that require determination. It is convenient to assess them by reference to each such matter.

The employee/contractor question

89    A court that is, as here, called upon to determine whether the supply of an individual’s labour has occurred pursuant to a contract of service (on the one hand) or a contract for services (on the other) will answer that question by taking account of various considerations germane to the relevant contractual relationship. Although there has been some refinement of the law in recent years, the identification and applicability of those factors has survived and they are well-established.

90    The so-called multifactorial test recognises that a range of indicia might inform the assessment that is here to be made. Some of those indicia incline toward a finding of employment; and others against it. The supply of labour that is subject to direction from the recipient party as to how, when and where tasks are to be performed, for example, generally indicates the former. The undertaking of work that involves the use of the working party’s own tools often suggests (or inclines toward) the latter. A labourer who is paid not for the result or task that he or she is engaged to generate but for the time that he or she spends generating it might more easily be thought to be engaged as an employee. Where no provision is made for the deduction and withholding of income tax, the presumption might more readily be to the contrary.

91    The short analysis just stated covers merely a fraction of the indicia that the authorities recognise as competent to bear upon the proper character of a personal service contract. There is no finite list, nor any single factor or combination of factors that is determinative in any given matter: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165 (“Personnel Contracting”), 184 [34] (Kiefel CJ, Keane and Edelman JJ). In Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939, Mummery J described the exercise as follows (at 944):

…there is no single satisfactory test governing the question whether a person is an employee or is self-employed…The question is: does the [person] perform his services as a person in business on his own account? If he does, his work…must be regarded as performed under a series of contracts for services, entered into by him in the course of carrying on his own business. If he does not, his work must be regarded as performed under a series of contracts of employment with those companies.

In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.

92    In Roy Morgan Research Centre Pty Ltd v Commission of State Revenue (Vic) (1997) 37 ATR 528, Winneke P (with whom Phillips and Kenny JJA agreed), after referring with approval to Mummery’s J observations in Hall, added (at 533):

Although technically it remains true that the question whether a person is engaged on a contract of service or for services is one of mixed law and fact, in reality the task of the trial judge in determining that question, in a case like the present one, involves the assessment and evaluation of evidence for the purpose of identification and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion.

93    One circumstance that looms large in any assessment of a personal services contract is the way in which the parties agree to attend to their respective taxation obligations. In Tattsbet Ltd v Morrow (2015) 233 FCR 46, 63 [70], Jessup J (with whom Allsop CJ and White J agreed) observed (emphases original):

…in contemporary Australia, it is impossible to ignore, and difficult to deprecate, the taxation implications of the mode of operation which parties to a relationship have voluntarily adopted. In the past, the deduction of what are now called PAYG instalments was always treated, uncontroversially, as indicative of an intention that the relationship in question was one of employment. To any suggestion that the absence of such instalments tended to point to the relationship being one of principal and independent contractor, it was often rejoined that such an argument was circular, in the sense that a consequence of the relationship being one of employment was, under legislation, that such instalments had to be deducted. In contemporary times, however, there are legislative markers on both sides, as it were. It is no longer just the absence of PAYG deductions that may make it more difficult to characterise the relationship as one of employment, it is the presence of GST collections by the putative contractor, and his or her compliance with the regulatory requirements which apply to the provision of services by persons who are not employees, that point quite strongly against the relationship being characterised in this way…

94    Until recently, the consideration of indicia that were said, in any given case, to bear upon the character of a personal service relationship required analysis as to “the totality of the relationship” pursuant to which work was performed: Hollis v Vabu Pty Ltd (2001) 207 CLR 21, 33 [24] (Gleeson CJ, Gaudron, Gummow, Kirby and Hanye JJ); ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146, 174 [107] (Buchanan J, with whom Lander and Robertson JJ agreed).

95    In Personnel Contracting, the High Court made clear that the analysis that is in fact required focuses upon the rights and duties of the contracting parties; and that those rights and duties arise, at least for the most part, from the terms of the bargain by which their relationship is constituted. Referring to WorkPac Pty Ltd v Rossato (2021) 271 CLR 456 (“WorkPac”)—another recent decision on a different but conceptually-related point—Kiefel CJ, Keane and Edelman JJ in Personnel Contracting observed (at 186-7 [43]-[44]) (emphasis original, references omitted):

43    …In cases such as the present, where the terms of the parties’ relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship.

44    …The employment relationship with which the common law is concerned must be a legal relationship. It is not a social or psychological concept like friendship. There is nothing artificial about limiting the consideration of legal relationships to legal concepts such as rights and duties. By contrast, there is nothing of concern to the law that would require treating the relationship between the parties as affected by circumstances, facts, or occurrences that otherwise have no bearing upon legal rights.

96    Thus, to speak of the indicia that bear, in any given case, upon the proper character of a relationship is to speak of indicia that arise as incidents of the rights and obligations that attend the performance of work. Although perhaps not exclusively, those rights and obligations are typically contained within the contractual terms by which the parties agreed to be bound.

97    As will shortly be seen, the actual conduct in which contracting parties engage—that is to say, the conduct reflective of “the totality of the relationship” between them—is relevant to the analysis (or at least potentially so) only insofar as it informs the identification of the terms that they agreed.

The casual employment question

98    Assuming that he was employed at all, it will be necessary to determine whether Mr Cropper was employed on a permanent basis, as he contends, or a casual basis, as EAAPL contends (in the alternative to its primary submission).

99    For present purposes, that question hinges upon the application of the criteria enumerated in s 15A (as it was originally enacted in 2021—see above, [83]). Specifically, the court must consider whether the offer of employment that Mr Cropper accepted (assuming that that is what it was) was made on the basis that EAAPL made no firm advance commitment to continuing and indefinite work according to an agreed pattern. That, in turn, is informed by (indeed, solely by) the matters enumerated in s 15A(2) (as it originally was), namely whether:

(1)    EAAPL was entitled to offer, and Mr Cropper was entitled to accept or reject, particular work;

(2)    whether Mr Cropper was to work as required according to EAAPL’s needs;

(3)    whether the parties described the engagement as a casual engagement; and

(4)    whether Mr Cropper was entitled to receive a casual loading or some equivalent thereof.

The reasonable notice question

100    Contracts of service that don’t contain an express term permitting termination may, by implication of law, be terminable upon the provision of reasonable notice: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (“Byrne”), 422-3 (Brennan CJ, Dawson and Toohey JJ).

101    In BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, a majority of the Privy Council observed (at 283) that:

…for a [contractual] term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that “it goes without saying”; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.

102    In some circumstances, statutory provisions or instruments might bear on a person’s employment in such a way as to render unnecessary the contractual implication of a term permitting termination upon reasonable notice. In Brennan v Kangaroo Island Council (2013) 120 SASR 11 (“Brennan”) (Vanstone, Anderson and Parker JJ), the Supreme Court of South Australia was asked to recognise, as I am in the present matter, the existence within an employment contract of a term permitting dismissal upon reasonable notice. The employee in question, Ms Brennan, had been employed as the respondent’s “Deputy Chief Executive Officer” pursuant to a contract that made no express provision for termination. In that position, she was subject to the provisions of an industrial award made under the Fair Work Act 1994 (SA). That award contained a provision that prescribed a minimum period of notice to be given to employees whose “…services…are to be terminated due to redundancy”.

103    Justice Parker (with whom Vanstone and Anderson JJ agreed) rejected Ms Brennan’s assertion that she was entitled, upon dismissal, to payment in lieu of reasonable notice. His Honour was of the opinion (expressed at 17 [34]) that:

…the implication of an obligation to give reasonable notice was not necessary to give business efficacy to the appellant’s employment contract. The existence of the award provision, albeit that it operated outside the contract, had the result that the employment arrangement was effective without any need to imply an obligation to give reasonable notice, ie there was no gap that needed to be filled. Furthermore, because of the existence of the award provision it could not be said that implication of such a term would have been accepted by the contracting parties as a matter so obvious as to “go without saying”.

104    Brennan was not the first matter to favour that conclusion. The Industrial Relations Court of Australia found to similar effect in Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 67 IR 162, 188-9 (Beazley J). That judgment was not disturbed on appeal and was referred to with approval by a full court of the Supreme Court of Tasmania in Australian National Hotels Pty Ltd v Jager (2000) 9 Tas R 153, 166 [28] (Evans J, with whom Underwood and Crawford JJ agreed), as well as by this court in Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23, 38 [94]-[96] (Marshall J).

105    In Heldberg v Rand Transport (1986) Pty Ltd (2018) 280 IR 93 (“Heldberg”) (White J), this court considered whether s 117 of the FW Act (above, [82]) bore upon the implication of a term conferring a right of dismissal upon reasonable notice into a contract that made no provision for termination. Preferring, in the absence of any need to, not to express a concluded view, his Honour nonetheless acknowledged (at 114-5 [105]-[106]) that it was “at least arguable” that s 117 should not apply so as to prevent the implication by law of a term of reasonable notice.

106    It will be necessary later to return to those authorities.

107    Where, in a given case, a requirement of reasonable notice does condition the right of an employer to terminate a contract of service, attention inevitably turns to what period of notice is reasonable in the circumstances there prevailing. That falls to be considered at the time that notice is to be given: Australian Blue Metal Ltd v Hughes [1963] AC 74, 99 (Lord Devlin, delivering the opinion of the Privy Council). What is reasonable will depend upon consideration of various circumstances, including the length of service that the employee has completed, the seniority of his or her position, the employee’s age and the ease with which he or she might be expected to find suitable alternative employment: Macauslane v Fisher & Paykel Finance Pty Ltd [2003] 1 Qd R 503, 517 [27] (Holmes J, with whom McMurdo P and White J agreed in the result). Again, that is not an exhaustive list of the circumstances that bear upon the assessment.

The set-off question

108    Sums that are paid in satisfaction of contractual obligations may, in the right circumstances, also stand in satisfaction of concurrent statutory obligations, including those that inhere in the form of the national employment standards. Whether or not they do turns upon the contractual purpose or purposes that are sought to be satisfied by their payment and receipt: Poletti v Ecob (No 2) (1989) 31 IR 321, 323-3 (Keely, Ryan and Gray JJ).

109    In Wardman v Macquarie Bank Ltd (2023) 322 IR 278 (“Wardman”), 317 [129], Wheelahan J (with whom Bromberg J and I relevantly agreed) explained:

…What is in issue is what obligations are discharged by payments that have been made by an employer to an employee. As the reasons of the Full Court in Poletti v Ecob (No 2) (1989) 31 IR 321 identify at 332-333, there are different situations that may have to be addressed. Those situations often invite consideration of the common law rules of attribution governing payments by a debtor to a creditor. Where by operation of those rules a payment that is made by an employer to an employee is to be attributed to the discharge of a contractual obligation, a further issue is to identify the agreed purpose of the payments under the contract: Poletti v Ecob (No 2) at 332 (Keely, Ryan and Gray JJ). That issue is to be resolved by the application of principles relating to the identification of objective contractual intent, which involves an inquiry that must look to the objective purpose of the payments under the express or implied terms of the contract of employment set against the circumstances known to both parties, and the surrounding statutory framework, which amounts to determining what a reasonable person would have understood by the terms: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Realestate.com.au Pty Ltd v Hardingham (2022) 97 ALJR 40 at [15] (Kiefel CJ and Gageler J), [43], [47] and [72] (Gordon J).

A further issue: admission of evidence

110    In addition to the questions just identified, there was an additional question concerning the admission of evidence that arose at the trial, about which it is prudent that something now be said. As will be evident from the factual summary offered above, Mr Cropper led a substantial volume of evidence about events that transpired throughout the period for which he worked for EAAPL. Much (and, indeed, the bulk) of it post-dated the commencement of his relationship with EAAPL, which objected to its admission on the grounds of relevance. It was said that neither the terms of the bargain that EAAPL and Mr Cropper struck, nor the nature of the resultant relationship, could be discerned from evidence of things that occurred later in time.

111    Those objections did not succeed and oral reasons for their failure were given. I should wish, now, to elaborate upon that outcome; and, in particular, to say something about the weight that attaches to much of the evidence that Mr Cropper led.

112    As has been noted, the proper characterisation of Mr Cropper’s relationship with EAAPL—that is, whether he was engaged as an employee or as an independent contractor—turns upon an analysis of the rights and duties under which they laboured. That, in turn, is informed largely (although perhaps not exclusively) by the terms upon which the parties contracted.

113    Where, as here, the terms of a contract have not been expressly agreed, it is necessary to ascertain what the parties to it should be understood to have agreed. In Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115, 134 [45], Gordon J (with whom Kiefel CJ and Gageler J, and Edelman and Steward JJ relevantly agreed), referring to County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193, [7] (Spigelman CJ) and Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 WLR 1213, 1221 (Megaw LJ), described that endeavour as involving the resolution of (references omitted):

…a question of fact. The issue is not one of interpretation, because there are no definitive words to interpret; “we are here concerned not with construing a contract but with evidence as to what the terms of a contract were”.

114    In EFEX Group Pty Ltd v Bennett (2024) 330 IR 171, Lee J (agreeing in the result with Katzmann and Bromwich JJ) described (at 189 [57]) as “a significant oversimplification” the notion that courts must refrain from taking account of post-contractual conduct when determining whether a relationship is one of employment. His Honour referred (at 189 [58]) to the observations of Murphy JA (with which Pullin and Newnes JJA agreed) in Fazio v Fazio [2012] WASCA 72, in which it was said (at [193]) that (emphases original):

…Such conduct may be considered for the purpose of inferring not only whether a binding agreement had been reached, but also its subject matter and the identification of its necessary terms: Bell Group [Ltd (in liq) v Westpac Banking Corporation (No 9) and (No 10) [2008] WASC 239; [2009] WASC 107; (2008) 39 WAR 1] [2665]–[2672]; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 [7]–[27], [45] (Spigelman CJ); Australian Estates Ltd v Palmer (Unreported, NSWCA, 22 December 1989). In the last mentioned case, Samuels JA (with whom Kirby P and Meagher JA agreed) said:

While it is true that a court cannot have regard to the subsequent conduct of the parties as an aid in the interpretation of a term in a written contract (see James Miller and Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583, Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235), this is merely an application of the parol evidence rule. Thus, as Stephenson LJ (with whom O’Connor LJ and Sir Stanley Rees agreed) said in Meares v Safecar Security Ltd [1983] QB 54 at 77, dealing with an oral contract:

‘There is nothing in those authorities which prevents the court from looking at the way the parties acted for the purpose of ascertaining what that term was. Commonsense suggests that their subsequent conduct is the best evidence of what they had agreed orally but not reduced to writing, though it is not evidence of what any written terms mean;’

115    Summarising those observations, Lee J in EFEX observed (at 190 [59]):

…in the absence of a written contract, the established principles of inferring a contract from the acts and conduct of parties (as well as in the absence of their words), come into play, and such conduct may be considered not only for the purpose of inferring whether a binding agreement had been reached at some point in time, but also for the purpose of identifying its necessary terms.

116    Here, of course, other than those contained in the non-disclosure agreement that was given to him in January 2005, the terms upon which EAAPL agreed initially to engage Mr Cropper were not stated. In those circumstances, there is no reason why the court could not look to the manner in which the parties conducted themselves—including after Mr Cropper’s engagement commenced—to determine what it was that they should be understood to have agreed. Similarly, there is no reason why regard could not be had to that conduct for the purposes of ascertaining whether the parties agreed to vary or replace that initial contract after it first came into effect.

117    So to acknowledge, however, is not to suggest that evidence of conduct that long post-dates the formation of a contractual relationship will have the same persuasive force as evidence that is more contemporaneous. In the present case, one might accept the force in objections to evidence concerning, for example, the discussions that Mr Cropper had with Ms Sedrak in 2017 (above, [44]-[45]). Although not minded to exclude evidence of those conversations entirely, it is fair to observe that they do not materially affect my assessment of the terms that EAAPL and Mr Cropper should be understood to have agreed more than a decade earlier.

118    Accepting, as I do (and did), that evidence of the parties’ post-contractual conduct—including conduct that took place many years thereafter—was not inadmissible for want of relevance, I should not be understood to accept that all of it bears equally upon the issues that fall for determination.

Contract of service or contract for services?

119    The principal question with which Mr Cropper’s action engages is whether he was retained pursuant to a contract of service (as he contends) or a contract for services (as EAAPL contends). It is common ground that, insofar as the relationship is properly understood as having been one of contractor and principal, rather than employment, none of the relief for which Mr Cropper moves should be entertained.

120    There is no doubt—and, again, it is not in contest—that, when his relationship with EAAPL began in early 2005, Mr Cropper was engaged pursuant to a contract for services. That was the expressed basis upon which the retainer was agreed. Plainly, it was agreed that Mr Cropper would be paid at the rate of $50 per hour; and that he would account for his time via the rendering of periodic tax invoices. Those invoices were paid according to their terms and Mr Cropper managed his own taxation and superannuation affairs. For the purposes of enabling him to perform his work, Mr Cropper purchased (at his own expense) a laptop computer. Additionally, he established his own internet domain and email address. The work that he performed was performed on his own schedule; and some of it was performed from his home.

121    As the parties properly concede, the relationship just described was classically one of independent contractor and principal.

122    In order, then, for Mr Cropper to succeed on his contention that he was, or became, engaged as an employee, it is necessary to examine whether the contractual relationship that was established in early 2005 was varied or superseded by other terms at some later point. If it was, then it will be necessary to examine the proper character of that relationship by reference to its terms.

123    It is, I think, beyond credible doubt that the relationship between EAAPL and Mr Cropper changed in January 2006. Plainly, the evidence of the circumstances that gave rise to the changes—given, as it was, nearly 19 years later—was lacking in precision; not in the least because Mr Cropper was the only person who gave any and even he could not recall whether there was any express agreement to alter the basis of the relationship as it had then endured. Nonetheless, it is clear that some profound changes were made in (or about) January 2006 to the manner in which EAAPL and Mr Cropper conducted themselves.

124    Those changes quite obviously had their genesis in Mr Cropper’s discussion with Ms Torville. It is to be recalled that, by January 2006, Mr Cropper was almost a year in to his engagement on the EnAct project. By all accounts, it had become clear that that engagement was not the discrete or temporary engagement that it had initially been understood and proposed to be. As Mr Cropper put it, the work that he was performing “seemed to be ongoing and indefinite”. Mr Cropper’s evidence was that he was approaching the threshold beyond which it would become necessary for him to register for goods and services tax with the Australian Taxation Office. Although nothing turns on his reasons for doing so, it was that factual landscape that informed Mr Cropper’s decision to propose that he “…go onto the payroll”.

125    There is no realistic scope for confusion as to what that proposal entailed. Counsel for EAAPL submitted that there is no reason why a business’s payroll should be understood to be limited to its employees. Respectfully, that cannot be accepted. In the present context, “payroll” does not permit of any ambiguity. By proposing that his name be added to EAAPL’s “payroll”, there can be no doubt that Mr Cropper must be understood to have been proposing that he be added to the ranks of EAAPL’s wage- or salary-earning staff; and, thereby, to alter the basis upon which he had hitherto been retained.

126    There is no evidence that Mr Cropper’s proposal was expressly accepted. It is not apparent that Ms Torville herself had authority to accept it on behalf of EAAPL. More likely than not, her position as Office Administrative Manager would not have permitted her to bind EAAPL in the manner that Mr Cropper proposed. Nonetheless, it is clear enough why it was with Ms Torville that Mr Cropper had the discussion that he had in January 2006: Ms Torville appears to have been the obvious contact within EAAPL to approach about administrative matters. Moreover, it is apparent that Ms Torville’s role was, as Mr Hanna put it, to assist Ms Duncan with day-to-day administrative tasks. There is no doubt that Ms Duncan, then EAAPL’s chief executive officer, had authority to accept what Mr Cropper had proposed.

127    Nonetheless, the absence of evidence of any express agreement by EAAPL to Mr Cropper’s proposal to “go onto the payroll” is a hurdle that Mr Cropper must clear in order to succeed on his primary submission that he was an employee. Inhering, as it must, in the law of contract, Mr Cropper’s engagement as an employee rests upon the court’s finding that EAAPL agreed to the variation or superseding of the contract by which he was initially engaged. In the absence of agreement to that end, there could be no variation or supersession of that initial contract.

128    At the risk of repetition, neither Ms Torville nor Ms Duncan—being the two representatives from EAAPL most likely to be able to shed any light on the subject—gave evidence at the trial. Mr Hanna did; but he was not able to say, one way or the other, whether the proposal that Mr Cropper be brought “onto the payroll”—nor any acceptance thereof by EAAPL—was discussed with him.

129    With that evidential landscape surveyed, attention inevitably turns to whether or not the court might properly infer that EAAPL agreed to vary or replace the terms upon which Mr Cropper had initially been engaged. As with many matters involving informal or unstated contracts, it is in that sense that evidence of the parties’ post-contractual conduct becomes important.

130    As has been noted, there is little doubt that the relationship between EAAPL and Mr Cropper changed in early 2006 (the point at which Mr Cropper’s discussion with Ms Torville took place). From that point, EAAPL ceased to pay Mr Cropper the amounts set out in his invoices. Instead, it began to deduct and remit amounts for income tax and superannuation. Although, for a matter of months, Mr Cropper continued to render invoices, he ceased doing so after receiving a group certificate for the year ending 30 June 2006.

131    Additionally, the evidence suggests that Mr Cropper began to perform more of his work at EAAPL’s offices, with equipment that was provided to him for that purpose. Specifically, he was given his own desk, a computer and a telephone. Over time, he came to acquire a parking spot and business cards.

132    All of that transpired in the months following Mr Cropper’s January 2006 discussion with Ms Torville. It is, in my view, very difficult to accept that such a sudden and significant alteration to the most important aspects of the relationship came about otherwise than as a result of the parties’ agreement to vary or replace the contract pursuant to which Mr Cropper was first engaged. Particularly given the profound change that was made to Mr Cropper’s remuneration, the picture that the evidence paints is realistically consistent with only one conclusion: namely, that EAAPL agreed that Mr Cropper should “go onto the payroll”.

133    Whether that assent was given by Ms Duncan or somebody else doesn’t much matter. True it is that the evidence does not permit any inference to be drawn as to some identifiable agent of EAAPL to whom that acceptance might be attributed. Mr Cropper’s evidence was that he might have discussed his transition to new terms with somebody other than Ms Torville; but he could not recall doing so. Similarly, Mr Hanna was unsure whether any such discussions had transpired or whether he had been party to them. Unfortunate though that is, it does not alter my inclination to infer that somebody within EAAPL was moved to accept that Mr Cropper should “go onto the payroll” and that the contractual basis upon which Mr Cropper was retained thereafter was varied or substituted. I so find.

134    The terms of that contract, as it stood in and from January 2006, are made evident from the nature of the parties’ conduct thereafter. As might already be apparent, I consider that the most significant of those terms concern the manner in which the parties envisaged that Mr Cropper would be paid. The hourly nature of his remuneration was unaltered (although it was periodically reviewed); but, as has already been noted, the rate that he was paid in net terms was adjusted to take account of income tax withholding and superannuation contributions. Mr Cropper began to receive monthly pay slips (or “advices”) and annual group certificates for the purposes of preparing his income tax returns. Those realities are all unmistakeably consistent with Mr Cropper’s having been brought “onto the payroll” as he had proposed. They are as good as impossible to reconcile with the notion that he remained engaged pursuant to a contract for services.

135    There are other features of the contract that warrant attention.

136    Whether EAAPL reserved unto itself a contractual right to control the work that Mr Cropper performed and the manner in which he performed it is difficult to say. It is clear enough that Mr Cropper was subject to direction as to the tasks that he was to perform. They were assigned to him from time to time, albeit with his input. There was no serious suggestion that either party considered that he was at liberty to refuse to perform the work that was assigned to him in that way; but it is equally clear that he enjoyed substantial discretion about how best to perform it. By all accounts, Mr Cropper was considered a subject matter expert and it was left largely to him to identify and complete what needed to be completed.

137    Similarly, it is difficult to say much about Mr Cropper’s contractual right (if any) to delegate the performance of his work. To the extent that the evidence sheds any light on that subject, it is difficult to reconcile it with the notion that Mr Cropper was at liberty to delegate the performance of the tasks for which he was contracted. As has been noted, those tasks were assigned to him from time-to-time by discussion with others within EAAPL: initially, with Mr Hanna; and, later, with Mr Davis. The work so assigned was work that Mr Cropper performed personally. The evidence does not permit of any finding that Mr Cropper was entitled, contractually, to delegate the performance of his work; but nor does it permit any finding to the contrary. Although it seems, to me, difficult to accept that EAAPL would not have had any difficulty with Mr Cropper taking the tasks that were assigned to him and delegating them to others of his choosing, to say so would be speculative and does not assist with identifying the terms upon which the parties contracted.

138    What is clearer is that the role that Mr Cropper performed grew over time and assumed a management dimension. In 2008, it was agreed as between Mr Cropper, Mr Hanna and Ms Duncan that the demands of the role required that Mr Cropper be given some assistance, which he was tasked with procuring (ultimately in the form of Mr El Fakih’s engagement in February 2008). Although not necessarily, responsibility for the recruitment of other staff is typically not something that one associates with independent contractors. Rather, the expectation to which Mr Cropper was directed was to ensure that EAAPL had the information technology resources that it needed. That is a function more easily associated with a contract of service.

139    The question of leave entitlements looms large in this matter (albeit perhaps in a different context). On the limited evidence available, it appears that the parties did not advert expressly to whether or not, or in what circumstances, Mr Cropper should be entitled to take leave (be that sick or personal leave, or annual leave). All the same, such evidence as there is suggests that Mr Cropper took personal leave when he required it (with appropriate notice to EAAPL); and took annual leave at times that he arranged with EAAPL. In both cases, the leave so taken was unpaid (in that Mr Cropper simply continued to be paid for the hours that he worked, rather than any that he did not work).

140    By way of summary, I find that the parties entered into a new contract—or, alternatively, altered what was then the existing contract (it doesn’t much matter)—in January 2006. Pursuant to it, Mr Cropper was to attend to tasks that were assigned to him (with his input) from time-to-time, and was provided with a relatively standard array of resources with which he might do so. It seems unlikely (I say without expressing any concluded view) that he was at liberty to delegate the performance of his work; but he was expected (without any right of refusal) to see to the work with which he was assigned. In return, he was paid by the hour at rates that were agreed (and increased) periodically, from which it was agreed that EAAPL would deduct amounts for income tax and superannuation contributions.

141    Assessing those circumstances as a whole, I consider that the contract that EAAPL had with Mr Cropper in and from January 2006 was a contract of service.

142    There are, of course, other matters disclosed by the evidence that are both consistent and inconsistent with the finding just stated. Mr Cropper’s participation in performance reviews (above, [38]), his invitation to participate in EAAPL’s initial employee share offering (above, [44]), his assignment of an employee number (above, [38] and [65]), the existence of EAAPL records that recognise his commencement date as 20 January 2006 (above, [38]), his receipt of an employment separation certificate and his dismissal being the subject of an “employment termination package” (above, [61]) are all matters that are consistent with employment. I say so conscious that the court’s task presently is to assess the character of the contractual relationship according to its terms, and not according to the manner in which events transpired, extra-contractually or otherwise. Although consistent with employment, I do not consider that any of the matters just listed should lead me to infer the existence of contractual terms that are apt to inform that assessment. I list them solely for the sake of completeness.

143    Similarly, there are other circumstances that tend the other way. At least in the early years of his engagement (and, it seems, for several years after January 2006), Mr Cropper continued to contract with other businesses (that is, businesses other than EAAPL—above, [18]). It is plain that he did so pursuant to contracts for services with those other entities; but, more significantly, it is no less plain that he was not subject to any obligation of exclusive service. Likewise, Mr Cropper referred in December 2006 to the “commercial arrangement” that he had with EAAPL having subsisted for approximately two years (that is, back to the point that he was first retained as a contractor—above, [32]). From at least five years prior to his departure, some at EAAPL (Ms Sedrak in particular) appear to have had occasion to express their view that Mr Cropper was not an employee; a view in which at least some credence appears to have been placed given that he was excluded from participating in an employee share plan in 2017 (above, [44]). Again, those circumstances are consistent with Mr Cropper’s having been engaged as an independent contractor; but I do not consider that they afford a sufficient evidential basis upon which the court might infer the existence of contractual terms that are apt to assist in that assessment. Again, I list them solely because the parties sought to focus upon them.

144    Painting “…a picture from the accumulation of detail”—but being careful only to consider such detail as emerges from the rights and obligations that arise as incidents of contractual terms—I consider that the relationship between EAAPL and Mr Cropper from January 2006 until February 2020 was one of employer and employee.

Was Mr Cropper a casual employee?

145    Having concluded that EAAPL relevantly employed Mr Cropper, attention now must shift to the species of employment relationship that subsisted. As has been rehearsed already, Mr Cropper maintains that he was engaged on a permanent basis, such that he was entitled to a suite of leave and other entitlements under the FW Act; whereas EAAPL maintains that, if he was employed at all (as I have found), Mr Cropper was engaged as a casual employee and no such entitlements accrued.

146    Whether or not Mr Cropper was engaged as a casual employee for the purposes of the FW Act rests entirely upon the application of s 15A, as it stood when first enacted. Necessarily, that requires the court to consider whether Mr Cropper’s employment was offered on the basis that EAAPL made “no firm advance commitment to continuing and indefinite work according to an agreed pattern”. That, in turn, is to be answered having regard exclusively to the matters enumerated in s 15A(2) of the FW Act (as originally enacted), at least insofar as they arise from the contractual terms upon which Mr Cropper was employed.

147    Before turning to each, I should wish to make some general observations about the nature of the test established by s 15A(1) of the FW Act (in its prior, relevant form). The evidence in this matter is that it was Mr Cropper who approached EAAPL (via the agency of Ms Torville) about going “onto the payroll”. I have, of course, found that what arose from that was a new or varied contract, which is properly assessed as one of service, rather than as one for services. Necessarily inherent in that conclusion is a finding that there was an offer and an acceptance; but it is difficult to see how the former was something that EAAPL extended to Mr Cropper (as opposed to the other way around).

148    For now (and notwithstanding that observation), I shall proceed on the intuitively unsound basis that it was EAAPL who made an offer whose acceptance gave rise to the contract of service that was established in January 2006. Mr Cropper’s evidence was that, when he had his discussion with Ms Torville, there was “…no clear end to the work” that he had been performing. He explained that his purpose in being added to EAAPL’s payroll was to get “…some confirmation of the ongoing nature of the work”. He had recently agreed with Mr Hanna that the EnAct system on which he had been engaged to work was not fixable and that EAAPL would be better off building a new system from scratch. Mr Hanna’s evidence was that, by the end of 2005, the work to which Mr Cropper had been deployed had no readily identifiable end date.

149    With that evidence acknowledged, I turn to consider the criteria against which the question of casual engagement here falls to be determined.

150    Section 15A(2)(a) (in its original form) requires analysis of the right of an employer to elect to offer work and the corresponding right of the employee to elect to accept or reject it. Such rights of election are historically consistent with casual employment: WorkPac, 485-6 [88] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ). Here, of course, there was no express contractual term directed to any such rights. Their existence falls to be established, if at all, as a matter of inference.

151    I have already noted that neither EAAPL nor Mr Cropper can credibly be understood to have contracted on the basis that Mr Cropper was at liberty to elect not to perform work that was assigned to him to perform. There is no evidence consistent with the retention of such a right on Mr Cropper’s part. That being so, there can be no proper basis upon which to infer that one existed contractually. Whether or not EAAPL enjoyed a contractual right to elect not to assign work to Mr Cropper is equally questionable.

152    Section 15A(2)(b) asks (or asked) whether the putatively casual employee is subject to a requirement to work as required according to the employer’s needs. Again, that is a difficult question to answer in the circumstances that this matter presents, where the parties did not turn their minds expressly to that issue (or many others). On the evidence before me, Mr Cropper worked the hours that he considered were necessary to deliver the work that he was engaged to perform. There is no evidence that he was directed to work any specific number of hours, nor any evidential basis upon which the court might properly infer an obligation to do so in the event that he was asked to. It strikes me as far more likely than not that Mr Cropper would have indulged any such request; but it is simply not possible on the evidence to determine whether he would do so in the discharge of any contractual obligation.

153    Section 15A(2)(c) invites (or invited) consideration as to whether a given employment relationship is described as “casual employment”. Here, of course, where no terms were expressly agreed to, there was no such description, nor any suggestion otherwise.

154    Likewise, there is no suggestion—much less any evidence to substantiate—that, under the terms of his employment, Mr Cropper was to be paid a specific rate of pay reserved by an award or other “fair work instrument” for casual employees (that being the enquiry to which s 15A(2)(d) is, or was, directed).

155    Having regard to the criteria that inform the court’s assessment, it is difficult—indeed, I think, impossible—to see how the court could properly conclude that Mr Cropper was employed on a casual basis in or after January 2006. Absent the agreement of express terms governing those matters—and governing them in a way or a combination of ways that is consistent with the historical conception of casual employment—it is as good as impossible for EAAPL to establish that Mr Cropper was employed on a casual basis.

156    It follows that I do not accept the contention that EAAPL advances. From January 2006, Mr Cropper was employed on a permanent, rather than casual, basis.

Mr Cropper’s entitlement to reasonable notice

157    Insofar as concerns the contract by which EAAPL engaged Mr Cropper from January 2006, two observations are uncontroversial: first, that it contained no express term regarding termination; and, second, that it was, in fact, terminable. The only issue for the court to determine now is upon what terms it was terminable at EAAPL’s initiative.

158    Relying upon some of the authorities surveyed earlier (and, principally, upon the conclusion of the Full Court of the Supreme Court of South Australia in Brennan, EAAPL submits that Mr Cropper’s contract of service was terminable upon payment equivalent to the amount of notice required under s 117(2) of the FW Act. Mr Cropper maintains that he was entitled to reasonable notice of its termination, which he calculates as 12 months.

159    I should make an observation at the outset about the state of authority. So far as the parties submitted (and my own researches have confirmed), there is no authority at the level of this court or above that definitively establishes the principle that EAAPL advances. Those cases in which superior courts have declined to imply terms of reasonable notice have all involved statutory landscapes different to the one now in play. Although the analyses that they contain are illuminating, none of them is binding.

160    There is also no authority binding upon me now that is contrary to the principle that EAAPL identifies. The highest that the cases appear to get is the observations made in obiter by White J in Heldberg (above, [105]).

161    Those realities acknowledged, I do not discern much doubt in the way that the court must approach the question of reasonable notice. What is asserted is a contractual entitlement and its existence rests upon orthodox principles of contract law. If the asserted entitlement exists, it must exist because it has been agreed, either expressly or impliedly. Presently, of course, there is no suggestion of express agreement; so the question turns solely upon whether or not a term of reasonable notice was to be implied into Mr Cropper’s contract.

162    Section 117 of the FW Act does not confer a right of termination. Rather (and in any given employment situation), it assumes that such a right exists elsewhere, most logically as a term of the relevant employment contract. The section operates so as to prohibit the exercise of such a right unless or until certain criteria are met. It does that by stipulating a minimum period of notice that the employer must give before the termination takes effect, or a minimum amount that it must pay to the employee in lieu thereof. But, at the risk of repetition, it does not confer a right of termination upon parties to employment contracts, including employers.

163    Where no such right is conferred expressly—whether as a term of the contract itself (as would be the usual case) or by operation of some other instrument—it is well established that the law will imply into a contract of service an entitlement to terminate on reasonable notice: Byrne (above, [100]). I find that such a term was implied into Mr Cropper’s employment contract.

164    That analysis is consistent with the considered obiter that White J recorded in Heldberg (above, [105]), with which, plainly, I respectfully agree.

165    In order that it might validly have terminated Mr Cropper’s contract of service, EAAPL was obliged first to afford him reasonable notice thereof. At the time of his departure from EAAPL, Mr Cropper was a tertiary-educated professional who was (or was approaching) 70 years of age. He is now retired. He had worked at EAAPL for some 14 years (plus an additional year before that as a contractor). At the time of his departure, his earnings were in the vicinity of $130,000.00 per annum.

166    In those circumstances, I consider that reasonable notice at the time that Mr Cropper’s engagement with EAAPL came to an end was three months. Although there was some discussion with Mr Cropper ahead of the decision to terminate his engagement, it is apparent that it did not crystalise into any form of notice until the very day that that engagement ended (28 February 2020). Necessarily, then, EAAPL cannot be understood to have afforded Mr Cropper notice of the termination of his contract; and certainly not reasonable notice thereof. There was no suggestion to the contrary.

167    It follows that Mr Cropper is entitled to damages for breach of contract, inhering in EAAPL’s failure to give him reasonable notice of the termination of his employment. I shall return later to assess the quantum of those damages.

leave entitlements and set-off

168    EAAPL submits that, in the event that the court were to conclude that Mr Cropper was employed otherwise than on a casual basis, such that he accrued the “National Employment Standards” entitlements that he claims, the amounts that it actually paid him were sufficient and intended to cover them. That being so, it says that it is entitled to set off against any liability that it has under s 44 of the FW Act (relating to its obligation to honour those NES entitlements) the amounts that it actually paid to Mr Cropper throughout the period of his employment.

169    At the core of that submission is EAAPL’s description of the hourly rates that were paid to Mr Cropper over the course of his engagement as “all-in” or “flat” rates. It is said that the court should construe those references as consistent with a mutual intention that the amounts paid to Mr Cropper were to be paid and received in satisfaction of any entitlements that he might have had or accrued under the NES.

170    I have already rehearsed the matters of principle that inform whether the receipt of sums pursuant to a contract might serve to discharge concurrent statutory obligations. Central to that question (at least for present purposes) is the objective or objectives to the satisfaction of which the parties intended that such sums should be directed.

171    As one might expect with a relationship that was as informal as the one to which this matter relates, the evidence as to what the parties intended to satisfy by the payment and receipt of the amounts that EAAPL paid to Mr Cropper was less than crystal clear. Nonetheless, there is at least some evidential basis supportive of the position that EAAPL advances. Under cross-examination, Mr Cropper agreed that, as late as 2016, the “gross hourly rate” that he received for the work that he performed for EAAPL was “…an all-in rate that took into account any payments that might be payable for superannuation or annual leave or sick leave”. The basis or bases underpinning that understanding (or expression of opinion) were not explored.

172    There was no equivalent evidence concerning what liabilities it was that EAAPL (via the agency of its officers) intended to discharge by the hourly rate that it paid.

173    The state of the evidence is, to say the least, somewhat curious. I confess considerable difficulty in understanding how EAAPL might establish that it intended that the amounts that it paid to Mr Cropper in the discharge of its contractual obligations were also competent to discharge concurrent statutory obligations that arose as incidents of the very employment relationship that it disclaims. Yet, at the same time, the position that EAAPL advances appears to be consistent with Mr Cropper’s own understanding (to say nothing of the fact that, throughout the lengthy period of his engagement, he did not advance claims for any of the entitlements that now feature as components of his claim for statutory compensation).

174    Ultimately, whether the hourly rates that Mr Cropper was paid over the duration of his employment were intended and competent to discharge EAAPL’s concurrent statutory obligations under the NES (and s 44 of the FW Act) is a question that, as Wheelahan J put it in Wardman (at [129], Bromberg J and I agreeing):

…is to be resolved by the application of principles relating to the identification of objective contractual intent, which involves an inquiry that must look to the objective purpose of the payments under the express or implied terms of the contract of employment set against the circumstances known to both parties, and the surrounding statutory framework, which amounts to determining what a reasonable person would have understood by the terms…

175    Here, it is impossible to conclude that each of the parties was alive to the prospect that Mr Cropper’s engagement might give rise to entitlements under the National Employment Standards (or its statutory ancestors). It is no less impossible to conclude that their agreed purpose in paying and receiving the hourly rate to which Mr Cropper was contractually entitled (or, more accurately, the adjusted rate net of income tax and superannuation contributions) was to cover not only the payment of Mr Cropper’s wage but also any incidental entitlement that he might have had to paid leave or public holiday pay. As a matter of objective contractual intent divined from what little there is in the way of express and implied contractual terms, and understood in the light of circumstances known to both parties, I am unable to see how they might be understood to have agreed that the amounts paid to Mr Cropper were to be paid in satisfaction of obligations to the existence of which it is clear that nobody ever adverted.

176    Perhaps that project might more easily be concluded if there were evidence that EAAPL intended that the rates that it paid would be paid on what Mr Cropper accepted was an “all-in” basis. It would, in that universe, be necessary to determine what was meant by that descriptor (“all-in”); but it is conceivable that it might be apt to describe a rate intended to be paid and received in satisfaction of “…all [of] the monetary obligations arising in the employment relationship whatever they may be”: James Turner Roofing Pty Ltd v Peters (2003) 132 IR 122, 128 (Anderson J, with whom Scott and Parker JJ relevantly agreed).

177    It is unnecessary to speculate. There is simply no evidential basis upon which to accept that the parties—and EAAPL, in particular—agreed and intended that the payment and receipt of an hourly rate should stand in satisfaction of any or all obligations that the law might impose in respect of Mr Cropper’s retention. That being so, EAAPL cannot set off against its liability under the FW Act the amounts that were, in fact, paid to and received by Mr Cropper.

Damages and statutory compensation

178    The parties are agreed that, when his engagement came to an end on 28 February 2020, Mr Cropper’s base rate of pay was $66.1466 per hour.

179    Mr Cropper maintains that, for the purposes of assessing the amounts that should have been paid to him in lieu of notice and in satisfaction of his claims under the FW Act, he should be understood to have been employed on a full-time (or 38-hour-per-week) basis.

180    EAAPL submits that Mr Cropper was, in truth, not employed on a full-time basis; and that any calculations of loss should proceed with that reality in mind. It maintains, at least for the purposes of the FW Act claims, that ss 20(2) and 20(4) of the FW Act and reg 1.11 of the FW Regulations operate such that Mr Cropper’s claims fall to be calculated on the basis that he averaged 27.7 hours’ work per week over the four weeks that concluded on Friday, 28 February 2020.

181    There was no evidence that it was ever agreed that Mr Cropper would serve on a full-time basis. From time-to-time, his hours of work were consistent with engagement on a full-time basis; but so to observe is not to accept the factual premise that was advanced. One of the few aspects of the evidence in this case that appears to be clear is that Mr Cropper did not have set hours of work. On the contrary, they appear to have fluctuated without obvious pattern. Certainly, no ordinary hours of work could be said to have been agreed.

182    That being so, I accept EAAPL’s submission about the application of s 20 of the FW Act and reg 1.11 of the FW Regulations (although not about the arithmetic that it was said to generate). The best (if not only) evidence that the court has is that Mr Cropper worked 100.25 hours in the four weeks prior to his dismissal. That equates to a weekly average of 25.0625 hours’ work. Thus, at the time of his dismissal, Mr Cropper’s “usual weekly hours of work” for the purposes of s 20(2)(b) of the FW Act—and, therefore, his “ordinary hours of work” for the purposes of s 90(2) of the FW Act—were 25.0625.

183    In so concluding, I acknowledge the obvious discrepancy that arises from the “Transaction Report” that Mr Cropper was given on 28 February 2020 (above, [65]), which appears to contemplate the payment of termination amounts calculated on a full-time, 38-hour-per-week basis. The evidence offers no explanation as to why those bases were favoured; and certainly nothing that might suffice to negative the conclusions that I have drawn about Mr Cropper’s “ordinary hours of work”.

184    By submissions advanced after the conclusion of the trial, Mr Cropper calculated his accrued but untaken annual leave at the time of his dismissal at 56.6 weeks. By his amended statement of claim dated 16 November 2021, he nominated a lower figure of 54.97 weeks, to which EAAPL maintains that he should be held. Save to maintain its entitlement to set-off from any annual leave entitlement the amounts that Mr Cropper was actually paid (an assertion that now stands rejected), EAAPL did not seek to cavil with that 54.97-week figure.

185    I accept that Mr Cropper should be held to what appears in his pleading. Upon his dismissal, his entitlement under s 90(2) of the FW Act was to be paid at his base rate of pay for the ordinary hours that he would otherwise have worked during the 54.97 weeks of annual leave that he had accrued but not taken. That amounts to a gross figure of $91,129.22 (being 54.97 weeks multiplied by 25.0625 hours per week multiplied by a base hourly rate of $66.1466). By failing to pay that sum to Mr Cropper upon the termination of his employment, EAAPL contravened s 44 of the FW Act. Mr Cropper is entitled to recover that sum pursuant to s 545(1) of the FW Act.

186    I turn, then, to consider Mr Cropper’s claim in respect of public holiday pay. By his post-hearing submissions concerning the calculation of his loss, Mr Cropper asserted—and, by submissions of its own, EAAPL does not dispute—that he was absent from work on 44 public holidays in the six years prior to the institution of this proceeding (that being, uncontroversially, the period in respect of which no relevant limitation applies). Mr Cropper asserts that, by operation of s 116 of the FW Act, he ought to have been paid in respect of those absences; and he calculates the loss that he has sustained by reason of EAAPL’s failure so to pay him as being equivalent to the base hourly rate that applied on each of those 44 dates multiplied by his ordinary hours of work.

187    Necessarily inherent in that calculation is the assertion, already rejected, that Mr Cropper was employed on a full-time basis. Having found that not to be the case and that Mr Cropper was, in fact, employed on a basis that sufficed to engage s 20(4) of the FW Act, it follows that I do not accept Mr Cropper’s calculation of his loss.

188    As with the other FW Act claims, EAAPL maintains that it is entitled to set off the amounts that it paid to Mr Cropper against any entitlement that he has to public holiday pay under s 116 of the FW Act. I have already explained why that is not so. It follows that I also do not accept EAAPL’s calculation of the loss that Mr Cropper might be understood to have sustained for want of EAAPL’s compliance with s 116 of the FW Act (or, more accurately, s 44, in respect of s 116).

189    The amount that Mr Cropper ought to have received in respect of each of the public holidays that features in this aspect of his claim depends, in each case, upon what his ordinary hours of work were. I have already accepted that his ordinary hours of work at any given time were to be calculated by reference to s 20(4) of the FW Act and reg 1.11 of the FW Regulations. Necessarily, then, that requires some analysis of his “usual weekly hours” as at each of the points that he claims to have been entitled to public holiday pay.

190    That analysis has not featured in the parties’ written and oral submissions to date. What follows is the court’s own analysis from the evidence that was led at trial. It would not be appropriate for the court to make orders consistent with that analysis before the parties were afforded an opportunity to say, one way or the other, whether it should do so. I accept that Mr Cropper was entitled to be paid amounts referrable to the public holidays in respect of which his claim is pressed and that EAAPL must be understood, by its failure to pay them, to have contravened s 116 and, thereby, s 44 of the FW Act. What those amounts were, however, will require further submission, perhaps (but not necessarily) informed by the analysis that follows.

191    Annexed as Schedule 1 to these reasons is a table that identifies, from the evidence presented at the trial, the number of hours that Mr Cropper worked in each of the four-week periods that preceded each of the public holidays in respect of which his claim for public holiday pay is advanced. It is (or would appear to be) by reference to that number of hours that Mr Cropper’s “usual weekly hours” can be calculated as at each of those public holidays. Although that yields a “weekly” hours figure, it seems to me that a figure pertaining only to the “day” of each relevant absence is most obviously calculated by dividing that weekly figure by five. Schedule 1 thus records, by reference to each daily number of hours so calculated, the number of hours for which Mr Cropper ought perhaps to have been paid under s 116 of the FW Act in respect of each of the public holidays in respect of which his claim is pressed. The base hourly rate that was so payable was not in dispute and is also set out in that table.

192    If the analysis contained in Schedule 1 is correct, it would follow that Mr Cropper was entitled to be paid a total of $20,176.85 in respect of the 44 public holidays that feature in this part of his claim. Mr Cropper would, in that universe, be entitled to recover as compensation under s 545(1) of the FW Act the total amount that ought to have been but was not paid to him in that regard.

193    That suffices (at least for now) to address Mr Cropper’s claim for public holiday pay and I turn, next, to address his claim for personal/carer’s leave. That is, by some margin, the smallest component of the loss that Mr Cropper claims. In fact, there are only two occasions on which he claims to have taken personal/carer’s leave for which EAAPL failed to pay him. The first was on 10 July 2018; and the second was on 29 March 2019.

194    Mr Cropper identifies, for each occasion, the number of hours’ leave that he took personal/carer’s leave (and for which he maintains that he ought to have been paid at his ordinary hourly rate). In respect of 10 July 2018, that amount is 2.5 hours. In respect of 29 March 2019, it is 7 hours. Neither amount is challenged and, on that basis, I take it to be established that Mr Cropper took personal/carer’s leave on those days for the amount of hours so nominated. It is common ground that Mr Cropper’s base hourly rate of pay for both of those days was $66.1466.

195    EAAPL maintains that it is entitled to set off against any entitlement that Mr Cropper had to paid personal/carer’s leave the amounts that were actually paid to him. Again, I have already explained why that submission must fail. In the absence of any other basis upon which to impugn Mr Cropper’s calculation of the value of the personal/carer’s leave that is claimed, I accept it as accurate.

196    Mr Cropper was entitled to be paid a total of $628.39 by way of personal/carer’s leave in respect of his absences from work on 10 July 2018 and 29 March 2019. EAAPL’s failures to pay him in respect of those absences were effected in contravention of s 99 of the FW Act. By each, it must be understood to have contravened s 44 of the FW Act and Mr Cropper is entitled to recover the amounts not paid as compensation under s 545(1) of the FW Act.

197    Lastly, then, I turn to consider Mr Cropper’s claim for damages for breach of contract (specifically, in respect of EAAPL’s failure to afford him reasonable notice of his dismissal). I have already concluded that, in the circumstances that prevailed, reasonable notice was three months. Mr Cropper’s loss is equivalent to the amount that he would have earned had he worked throughout that period of notice.

198    At the trial, an issue arose in relation to Mr Cropper’s obligation to mitigate the loss that he claims to have suffered as a consequence of EAAPL’s breach of his employment contract. As it happens, I do not consider it necessary to address that issue beyond the summary observations that follow. Even assuming that Mr Cropper was subject to an obligation to mitigate, I do not consider that the loss arising from EAAPL’s failure to afford him reasonable notice of his dismissal is anything less than the amount that he would have earned had he been retained to work throughout that period. I do not consider that there can be any serious argument that Mr Cropper ought to have but did not obtain alternative sources of income during the three-month period following his dismissal. The evidential basis for that submission was not made apparent. All the more is that so considering that Mr Cropper’s dismissal came close in time to the advent of the covid-19 pandemic.

199    What, then, could Mr Cropper be expected to have earned had he worked out the period of reasonable notice to which he was entitled? The answer to that question depends on the number of hours that he could be expected to have worked in that period.

200    Mr Cropper submitted that, at the time of his dismissal, he should be understood to have been engaged on a full-time basis. I have already explained why I do not accept that and I needn’t say anything more. EAAPL, in contrast, submitted that Mr Cropper should be understood to have been likely, throughout that period, to work a pattern of hours equivalent to his “usual weekly hours of work” at the time of his dismissal (being 25.0625—see above, [182]).

201    Lest it not be axiomatically clear, the statutory conception of “ordinary hours of work”—calculated, as it is in Mr Cropper’s case, by reference to another statutory concept, “usual weekly hours of work”—has no application to the calculation of Mr Cropper’s damages for breach of contract. Having concluded that Mr Cropper was not engaged to work any set number of hours, ascertaining the number of hours that he might have worked had he been retained for the period of reasonable notice to which he was entitled necessarily requires a measure of assumption. Plainly, that might be informed by circumstances analogous to those that bear upon the statutory conception of “ordinary hours of work”; but, just as plainly, there might be others that should bear upon the assessment as well.

202    The parties’ written and oral submissions to date concerning the quantum of the damages that Mr Cropper has sustained by reason of EAAPL’s failure to afford him reasonable notice of his dismissal do not engage with the observations just made. For his own part, Mr Cropper maintained that those damages should be assessed on the basis that he was employed on a full-time (38-hour-per-week) basis. EAAPL submitted that they should be assessed on the basis of what the FW Act deems were his ordinary hours of work as at 28 February 2020. For reasons already identified, neither submission can be accepted.

203    How, then, should those damages be assessed? Again, it seems to me that it would be inappropriate for the court to attempt to answer that question absent further submission from the parties. That is the course that I will chart; but, in the interim, I shall record what appear to be some possible avenues worthy of consideration.

204    As I have noted, divining the number of hours that Mr Cropper would have worked had he been afforded the three months’ notice that I have concluded was reasonable in the circumstances necessarily involves a measure of supposition. One way—indeed, the way most closely aligned to what EAAPL has submitted—would be to take the hours that Mr Cropper worked in February and multiply it by three. Another might be to take the sum of the hours that he worked in the three months prior to 28 February 2020. Yet another might be to take the sum of the hours worked in March, April and May of 2019 (or other years). Another still might involve taking the average number of hours worked per month in the year prior to 28 February 2020 and multiplying it by three. Any one of those modes of calculation would, subject to hearing from the parties otherwise, yield a defensible estimate of what Mr Cropper might have hoped to have earned had he received reasonable notice of his dismissal.

205    Whatever variables are taken into account in calculating Mr Cropper’s damages in contract, it is plain—and, indeed, is not in contest—that the total amount that arises will need to be adjusted in light of the $12,567.85 that Mr Cropper was in fact paid “In Lieu of Notice” (above, [61]).

206    The parties will have an opportunity to make further submissions about how the court should best assess Mr Cropper’s loss (if, of course, they are unable to agree on an amount that takes account of the conclusions herein). Those submissions should be based on the evidence that was led at trial.

Next steps

207    I do not propose yet to make any final orders. Plainly given these reasons, there will be judgment for Mr Cropper in an amount to be determined; and that amount will be the subject of a related order or orders for interest pursuant to s 51A of the FCA Act and s 547 of the FW Act. As was foreshadowed at the commencement of the trial, the matter will need to be the subject of further hearing concerning the potential imposition of pecuniary penalties relating to the contraventions of the FW Act that these reasons record.

208    The parties should confer with a view to agreeing upon orders appropriate to give effect to these reasons. In the event that they can agree on the amounts that, in light of the conclusions set out herein, the court should award Mr Cropper as statutory compensation for unpaid public holiday pay and as damages for breach of contract, they shall have liberty to inform my chambers. Absent some obvious reason not to, I will make orders consistent with those sums (and as to annual leave and personal/carer’s leave in the amounts outlined above), together with related orders as to interest.

209    In the event that no such agreement is possible, the parties shall have 28 days from the day that this judgment is published to file and serve written submissions of no more than five pages directed to how, in light of the conclusions stated herein, the court ought to calculate the amount that should be paid to Mr Cropper as statutory compensation for his claim to unpaid public holiday pay and as damages for breach of contract. Seven days after they do so, they will have liberty to file and serve submissions each in reply of no more than three pages. Unless one or both of them requests (in those written reply submissions) a further oral hearing directed to those calculations, I will proceed to determine them—and otherwise to make final orders on all matters other than the potential imposition of pecuniary penalties—on the papers.

210    Thereafter, it will be necessary to program the matter for further hearing as to penalties. The matter will, to that end, be listed for a case management hearing on a date to be fixed.

Associate:

Dated:    23 June 2025

SCHEDULE 1