WorkPac Pty Ltd v Skene [2018] FCAFC 131

FEDERAL COURT OF AUSTRALIA

WorkPac Pty Ltd v Skene [2018] FCAFC 131 Appeal from: Skene v Workpac Pty Ltd [2016] FCCA 3035 Skene v WorkPac Pty Ltd (No 2) [2017] FCCA 525

File numbers: QUD 157 of 2017 QUD 195 of 2017

Judges: TRACEY, BROMBERG AND RANGIAH JJ

Date of judgment: 16 August 2018

Catchwords: INDUSTRIAL LAW – National Employment Standards – entitlement to annual leave in Div 6 of Pt 2-2 of the Fair Work Act 2009 (Cth) ("FW Act") – s 86 of the FW Act which provides that Div 6 "applies to employees, other than casual employees" – meaning of casual employee in s 86 of the FW Act – whether employee's claim for annual leave excluded because the employee was a casual employee within the meaning of s 86 –whether "casual employee" has its legal meaning or an asserted specialised industrial meaning, namely, a person designated to be such an employee by the applicable industrial instrument – discussion of meaning of the term "casual employee" – discussion of whether there is a uniformly understood specialised meaning of the expression "casual employee" referable to the use of that term in industrial awards – where asserted specialised meaning would provide incomplete meaning to the expression "casual employee" because does not address "award/agreement free employees" – whether undefined single expression intended to have a dual or compound meaning – discussion of the statutory context and purpose of paid annual leave as provided for under the National Employment Standards – discussion of the historical statutory application and judicial consideration of the term "casual employee" – whether the term "casual employee" has acquired a legal meaning - discussion of the interaction between the National Employment Standards and a modern award or an enterprise agreement – consideration of the expression "long term casual employee" as defined in s 12 of the FW Act – whether employment "on a regular… basis" means constancy of work or regularity of hiring – whether regular employment is necessarily inconsistent with the characterisation of the employment as casual – discussion of the indicia of casual employment – whether indicia identified by the authorities excluded by the statutory context of Div 6 of Pt 2-2 of the FW Act – casual employment distinguishable from full-time and part-time employment – whether nature of the employment as casual employment is to be objectively assessed to take account of its real or true character – significance of the absence of an advance commitment to continuing and indefinite work to the characterisation of an employment as casual employment – whether the payment of a casual loading or employment by the hour or on an hour's notice determinative of casual employment INDUSTRIAL LAW – employee employed under transitional instrument ("Agreement") – whether employee entitled to annual leave under the Agreement – whether employee excluded from entitlement to annual leave under the Agreement because a casual employee – meaning of casual employee under the Agreement – whether by providing that the employer shall inform the employee of the status of his or her engagement the Agreement provides that a casual employee is a person designated to be such by the employer – alternatively whether casual employee intended to have its ordinary legal meaning – applicable principles for the interpretation of industrial agreements INDUSTRIAL LAW – pecuniary penalties for failure to provide entitlements to annual leave under the FW Act and under an industrial agreement – where contravention not deliberate - whether pecuniary penalty appropriate because the contravener had failed to closely consider the legality of the employment arrangements made – whether primary judge's finding that close consideration had been given was erroneous – appellate correction of sentence where a mistake as to a material fact STATUTORY INTERPRETATION – statutory interpretation of the term "casual employee" in s 86 of the FW Act – principles regarding the interpretation of an undefined term – whether an undefined single expression was intended to have a dual or compound meaning – presumption that where words have acquired a legal meaning they are read with that meaning unless a contrary intention clearly appears – presumption that the same term appearing in different parts of a statute should be given the same meaning – presumption that where the Parliament repeats words which have been judicially construed it is intended that the words bear the meaning already attributed to them – whether Parliament intended that the words "casual employee" in s 86 be used in their ordinary sense, their legal sense or a specialised non-legal or technical sense