2022 WAIRC 00655
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2022 WAIRC 00655

CORAM
: INDUSTRIAL MAGISTRATE E. O'DONNELL

HEARD
:
WEDNESDAY, 16 FEBRUARY 2022

DELIVERED : FRIDAY, 9 SEPTEMBER 2022

FILE NO. : M 120 OF 2021

BETWEEN
:
ROBERT CACCIOLA
CLAIMANT

AND

SERCO AUSTRALIA PTY LTD
RESPONDENT

CatchWords : INDUSTRIAL LAW – Interpretation of industrial agreement – consideration of industrial context in which agreement formulated – nature of employment (casual) as against job classification – whether nature of role incorporated into classification
Legislation : Fair Work Act 2009 (Cth)
Instrument : Serco CPSU Acacia Prison General Enterprise Agreement 2017 (Cth)
Corrections and Detention (Private Sector) Award 2010 (Cth)
Case(s) referred
to in reasons: : Putland v Royans Wagga Pty Limited [2017] FCA 910
Construction, Forestry, Mining and Energy Union v Deputy President Hamberger [2011] FCA 719
Automotive, Food, Metals, Engineering, Printing and Kindred Industries’ Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005
Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208
Result : Claim dismissed
REPRESENTATION:

CLAIMANT : MR C. FORDHAM (OF COUNSEL) FROM SLATER AND GORDON LAWYERS
RESPONDENT : MR J. FERNON (OF COUNSEL) INSTRUCTED BY MR P. BROWN (OF COUNSEL) FROM BAKER & MCKENZIE

REASONS FOR DECISION
Introduction
1 This claim pertains to the employment of the Claimant, Robert Cacciola, with the Respondent, Serco Australia Pty Ltd (Serco), at Acacia Prison (Acacia) from 9 July 2018 to 15 February 2019 (Period of Employment).
2 The claim raises for consideration the following issues:
· The application of an enterprise agreement to an employee and employer;
· The definition or concept of ‘job classification’;
· The applicability of casual loading to base rates of pay in an enterprise agreement.
3 The parties’ positions are relatively straight forward.
4 The Claimant says:
a. During the Period of Employment, the Serco CPSU Acacia Prison General Enterprise Agreement 2017 (Cth) (Agreement) applied to him;
b. Under the Agreement, he was employed as a ‘Trainee Custodial Officer (Induction)’ (TCO);
c. He was employed in the role of TCO on a casual basis;
d. The role of TCO as a matter of logic involved the performance of ‘custodial functions’;
e. He was therefore in a role that was a sub-category of ‘Custodial Officer’;
f. His rate of pay was therefore governed by sch 2 of the Agreement, which is the only schedule that specifically mentions ‘casual’ employment as it pertains to Custodial Officers;
g. Schedule 2 of the Agreement provides for one rate of pay for casual Custodial Officers, that rate being $39.60 per hour;
h. The Claimant should therefore have been paid at the rate of $39.60 per hour;
i. As he was in fact paid at the rate of $31.7524 per hour, Contrary to paragraph 20 of the parties’ Statement of Agreed Facts, which mistakenly states that the Claimant was paid $31.2875 per hour – this would be a loading of 25% on a base rate of $25.03. Attachment RC-5 to Exhibit 1 – Witness Statement of Robert Caccioloa lodged on 24 December 2021 shows the rate of pay was $31.7524, which represents a loading of 25% on a base rate of $25.40.
Serco has contravened a term of the Agreement, contrary to s 50 of the Fair Work Act 2009 (Cth) (FWA), and is liable to pay the difference between the rate paid and the rate claimed.
5 The Respondent says there has been no contravention of the Agreement. It says that during the Period of Employment, the rate of pay in sch 2 of the Agreement cannot have applied to the Claimant because:
a. Schedule 2 of the Agreement pertains to casual Custodial Officers only;
b. By the Agreement’s definition, Custodial Officer ‘means an Employee performing custodial functions who is working towards completing or has successfully completed a Certificate III in Correctional Practice’; Clause 6.4 of the Agreement.

c. As the Claimant was a trainee, he was not performing ‘custodial functions’;
d. The Claimant therefore cannot have been entitled to be paid at a rate reserved for employees who are performing custodial functions.
6 The Respondent further states that the Agreement did not apply to the Claimant at all, and that his employment was governed instead by the Corrections and Detention (Private Sector) Award 2010 (Cth) (Award).
7 The Claimant accepts that if the Award applied, then he was paid at above award rate and in that case his claim could not succeed.
8 The parties agree that the Claimant was employed on a casual basis. Although I find it somewhat unusual that a person would be engaged to do a training course on a casual basis, I accept that in this case, that is what happened. I am not invited, and there is no reason on the evidence, to question whether the Claimant was in fact employed on some other basis. He was a casual employee during the period in question.
9 Both parties place significant emphasis upon the Claimant’s status as a casual employee to contend for very different outcomes:
a. The Claimant submits that because he was casual, his rate of pay must have been governed by sch 2 of the Agreement, and the applicable hourly rate was therefore $39.60.
b. The Respondent submits that because the Claimant was casual, the Agreement did not apply to him at all because there is no such thing as a casual TCO under the Agreement. Consequently, the Award automatically applied, and under the Award the Claimant was paid more than the applicable rate for a trainee, as defined in the Award.
10 It is convenient to state the issue for determination in this case by paraphrasing the terms used by Bromwich J in his statement of the issue in the case of Putland v Royans Wagga Pty Limited [2017] FCA 910 [284], namely: the Claimant claims that he was underpaid during the Period of Employment, in breach of the remuneration set out in the Agreement for an asserted job classification. Determination of this issue requires consideration of the applicable industrial instrument – i.e., the Agreement or the Award – and the appropriate job classification within the applicable instrument, in view of the parties’ agreement that the nature of the Claimant’s role was casual.
Which Industrial Instrument Applied To The Claimant?
11 The Respondent does not concede a fundamental part of the Claimant’s case, namely that the Agreement applied to the Claimant’s employment. It submits that the Award was the applicable instrument. I will determine this issue first.
12 Attachment RC-1 to Exhibit 1 is the written offer of employment made by Serco to the Claimant on 28 June 2018 (the Offer of Employment).
13 Relevantly, the offer provided that the Claimant was to work at Acacia:
a. With the job classification of ‘Trainee Custodial Officer (Induction)’;
b. Commencing on 9 July 2018;
c. On a casual basis;
d. Under the Agreement and any successor instrument;
e. At a ‘casual base hourly rate of pay of $25.03 gross per hour, plus a casual loading of 25%’. With respect to the rate of pay, the Claimant was in fact paid at a base rate of $25.40 gross per hour, plus a casual loading of 25%, giving a total hourly rate of $31.75 – see Attachment RC-5 to Exhibit 1. The discrepancy is easily explained. The letter of offer was written in June 2018 and it would seem the author had regard to the rates of pay applicable at that time. But as at 1 July 2018, pay rises applied pursuant to the Agreement. As the Claimant commenced work on 9 July 2018, he was paid at the higher rate.

14 Having regard to the Offer of Employment, it is clear that Serco intended that the Agreement apply to the Claimant’s employment.
15 It should be noted that, as a matter of law, the Award at all times covered the Claimant’s employment at Acacia. Section 48 of the FWA.
However, if the Agreement applied to the employment, then the Award did not apply to it. Section 57 of the FWA.

16 Section 52(1) of the FWA provides:
An enterprise agreement applies to an employee, employer or employee organisation if:
(a) the agreement is in operation; and
(b) the agreement covers the employee, employer or organisation; and
(c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.
17 Section 53(1) of the FWA provides:
An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.
18 Section 57(1) of the FWA provides:
A modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.
19 Summarising the effect of the foregoing provisions, in Construction, Forestry, Mining and Energy Union v Deputy President Hamberger [2011] FCA 719, Construction, Forestry, Mining and Energy Union v Deputy President Hamberger [2011] FCA 719 [30].
Katzmann J said with respect to enterprise agreements:
The core provisions are set out in Division 2 of Part 2-1. Subdivision D of Division 2 deals with the terms and conditions of employment provided by an enterprise agreement. A person must not contravene a term of an enterprise agreement (s 50). Obligations are only imposed on a person if the agreement applies to the person (s 51). An enterprise agreement applies to a person (whether an employee, employer or employee organisation) if the agreement is in operation, covers the person and no other provision of the Act provides or has the effect that the agreement does not apply to that person (s 52). An enterprise agreement covers an employee, employer or employee organisation if it is expressed to ‘cover (however described) the employee or employer’ (s 53(1)). A reference in the Act to an enterprise agreement applying to or covering an employee is a reference to the agreement applying to the employee in relation to particular employment (ss 52(2), 53(6)). Section 53(4) provides for the circumstances in which an enterprise agreement ‘does not cover’ an employee, employer or employee organisation ... An enterprise agreement operates from seven days after it has been approved by Fair Work Australia or a later day if that is specified in the agreement (s 54(1)). Section 54(2) provides for the circumstances in which an enterprise agreement ceases to operate (emphasis added).
20 As to whether the Agreement applied to the Claimant’s employment:
a. The Agreement was in operation during the Period of Employment; and
b. No other provision of the FWA provided, or had the effect, that the agreement did not apply to the Claimant or the Respondent.
21 Thus, the requirements of s 52(1)(a) and s 52(1)(c) of the FWA were fulfilled.
22 The question is whether the Agreement covered the Claimant, as required by s 52(1)(b) of the FWA.
23 The Claimant submits that the Agreement covered him, but because he was a casual employee he had to be paid pursuant to sch 2 of the Agreement.
24 The Respondent submits that the Agreement did not cover the Claimant. The Respondent does not suggest that the Agreement did not cover the Claimant for a reason contemplated by s 53(4) of the FWA. The Respondent essentially submits that the terms of the Agreement did not contemplate a casual TCO, and therefore the Agreement was not ‘expressed to cover (however described)’ Section 53(1) of the FWA.
the employee (Claimant), in relation to this particular employment as a casual TCO.
The Agreement’s Coverage Clause
25 The Agreement’s coverage clause is cl 2, and specifically cl 2.1, which states:
Except as mentioned within this clause, this Agreement applies to all persons employed by Serco Australia Pty. Ltd. at Acacia Prison in Western Australia, who are engaged in the job classifications set out in the attached schedules.
26 Clause 2.3 of the Agreement provides:
The parties to this Agreement are:
a) Serco Australia Pty. Limited (‘the Employer’);
b) Employees whose employment is within the scope and application of this Agreement as outlined in the schedules; and
c) CPSU, The Community and Public Sector Union State Public Sector Federation Group.
27 For the agreement to apply to a person, the person must be:
a. Employed by Serco;
b. Employed at Acacia;
c. Engaged in a job classification set out in the schedules attached to the Agreement.
Did The Claimant Fall Within The Agreement’s Coverage Clause?
28 In order to determine the answer to this question, it is necessary to look at the terms of the Claimant’s employment contract and the work the Claimant performed during the Period of Employment.
29 The Claimant did not give evidence at trial and was not cross-examined, so the only evidence of his job and the work he performed during the Period of Employment comes from Exhibit 1 – i.e., the Claimant’s statement and the attachments thereto.
30 I accept Exhibit 1 as an accurate, although not overly detailed, description of the work the Claimant did during the Period of Employment.
31 The Offer of Employment specifies:
a. The contract name as ‘Acacia Prison’;
b. The work location as Wooroloo in Western Australia – Wooroloo being the Perth suburb in which Acacia is located;
c. The job title to be applied to the Claimant as ‘Trainee Custodial Officer’; and
d. The job classification as ‘Trainee Custodial Officer (Induction)’.
32 In his statement, the Claimant explains that on starting work with Serco on 9 July 2018, he was initially employed on a casual basis and his job title was ‘Trainee Custodial Officer’. Exhibit 1 [10].
This accords with attachment RC-1.
33 The Claimant does not specifically state that he was working at Acacia, but it has not been suggested that he was working anywhere other than Acacia, and I find that he was working there.
34 The Claimant explains that even though he had attained a Certificate III in Correctional Practice (Cert III) on two previous occasions, in 2014 and 2016, Exhibit 1 [5], [8].
he was required by Serco to perform training activities to obtain another Cert III. He agreed to undertake the initial training course (ITC). Exhibit 1 [12] - [13].

35 For three or four weeks after commencing work with Serco, the Claimant participated in the ITC, as arranged.
36 He then suffered a serious knee injury during a first aid training session (that session being part of the ITC). Exhibit 1 [15].
As a result of the injury, the Claimant was not able to continue in the ITC. For about five months while he was recovering from the injury, the Claimant worked in the Intelligence (Intel) Department for Serco at Acacia. Exhibit 1 [18].
Some of the duties the Claimant performed with the Intel Department were:
a to listening to telephone conversations made by high alert prisoners;
b reading mail correspondence of high alert prisoners;
c performing some work to connect or trace bank account information where it was suspected that transactions involved payment for drugs or other contraband. Exhibit 1 [20].

37 Attachment RC-5 shows that from 30 July 2018 until 10 February 2019, the Claimant was in receipt of workers’ compensation payments. For most of that period, the Claimant also received pay for ordinary hours worked, but from 13 August 2018 until 7 October 2018, he was only in receipt of workers’ compensation. No claim is made for any breach of the FWA by Serco during the period from 13 August 2018 until 7 October 2018. Originating Claim lodged on 25 May 2021 [8].

38 Around January 2019, the Claimant resumed the ITC. Upon completion of the ITC, the Claimant was offered a full-time position as a Custodial Officer at Acacia. Exhibit 1 [22] - [23].

39 Although the Claimant says that Serco required him to perform training activities ‘to obtain another Certificate 3 in Correctional Practice’, Exhibit 1 [12].
he does not say whether he had in fact attained another Cert III by the time he finished the ITC, or whether he was still working towards one after he accepted the new role as a Custodial Officer in April 2019.
Was The Claimant Engaged In A Job Classification Set Out In The Schedules?
40 Exhibit 1 and its attachments make it clear that during the Period of Employment, the Claimant was employed by Serco at Acacia in Western Australia, fulfilling two out of three requirements for coverage by the Agreement. The part of cl 2.1 of the Agreement in question is whether the Claimant was engaged in a job classification set out in the attached schedules.
41 Clause 6 of the Agreement defines various terms. Relevantly, it defines the following terms:
6.3 Trainee Custodial Officer – means an Employee undertaking the Initial Training Course and has yet to be assessed as successfully completing the Initial Training Course.
6.4 Custodial Officer - means an Employee performing custodial functions who is working towards completing or has successfully completed a Certificate III in Correctional Practice.
6.5 Company - means Serco Australia Pty Limited ABN: 44 003 677 352.
6.9 Employee - means an Employee of the company whose job classification is within the scope and application of this Agreement.
42 Schedule 1 to the Agreement is entitled
Schedule 1 – Custodial Salaries (Annualised)
(Including Custodial Officers engaged on or after the date of approval of this Agreement by the Fair Work Commission)
43 Schedule 1 of the Agreement lists a number of job classifications in the first (left-most) column. They appear under the heading ‘Position’, but it is clear that these are job classifications.
44 One of the job classifications that appears under the ‘Position’ heading in sch 1 of the Agreement is ‘Trainee Custodial Officer (Induction)’.
45 During the Period of Employment, the Claimant worked for Serco, which is defined as the ‘Company’ in cl 6.5 of the Agreement. Clearly, he was an employee of Serco. It is also clear that he was working at Acacia. But to be an ‘Employee’ under the Agreement, he had to be an employee of Serco ‘whose job classification [was] within the scope and application of [the] Agreement’.
46 At face value, the Offer of Employment invites the conclusion that the Claimant was covered by the Agreement, because it states that his job classification was ‘Trainee Custodial Officer (Induction)’ – a job classification that appears in sch 1 of the Agreement.
47 However, it is necessary to go beyond the simple description in the offer of employment and look at what the Claimant actually did. If the Claimant had been engaged in work that bore no relation to the job classification specified in the Offer of Employment, there would be an argument that he was, in reality, engaged in some other type of work. If that were the case, he might fall within a different classification under the Agreement schedules or – as the Respondent suggests, not fall within the classifications at all.
48 Based on the evidence in Exhibit 1, I find that during the Period of Employment the Claimant was undertaking the ITC and had yet to be assessed as successfully completing the ITC. This was the case even though the Claimant had previously attained a Cert III because, as he explains in his statement, Serco required him to undertake training to obtain the Cert III again, and he agreed to do so.
49 The Claimant’s time with the Intel Department represented a hiatus in his participation in the ITC. As to whether the duties he performed with the Intel Department were akin to those performed by someone engaged in a different job classification, I have no way of determining because no evidence was led as to what such other job classification might be.
50 Although the Claimant was certainly not physically undertaking the ITC while he was with the Intel Department, once he had sufficiently recovered from his knee injury, he resumed the ITC and was not offered a position as a Custodial Officer until he had completed it. Thus, even while he was in the Intel Department, the Claimant had ‘yet to be assessed as successfully completing’ the ITC – a circumstance which is part of the definition of a Trainee Custodial Officer.
51 In any event, even if the Claimant’s duties in the Intel Department took him outside his own job classification (as to which there is no evidence), there is no basis for me to find that it took him outside all job classifications set out in the schedules and thereby removed him from the Agreement’s application.
52 The evidence supports a finding that, during the Period of Employment, the Claimant fell squarely within the definition of Trainee Custodial Officer.
53 The Respondent submits that the Claimant’s engagement on a casual basis removes him from the scope of the schedules.
54 Whilst employment type – full-time, part-time, casual or fixed term – determines rate of pay for a particular job classification, I can find no authority to support the submission that it is an inherent part of job classification. In fact, the authorities I have found suggest to the contrary. For example, to return to the case of Putland v Royans Wagga Pty Limited, [2017] FCA 910.
Bromwich J described the dispute in that case thus:
The Putlands claim that they were underpaid during the relevant period in breach of the remuneration set out in an asserted award for an asserted job classification. Determination of this issue requires consideration of the applicable award, the appropriate job classification within the applicable award and the nature of the role (i.e. full-time, part-time or casual) for each of the Putlands [284].
55 His Honour is not stating a principle of law here; rather, he is straightforwardly setting out the aspects of the Putlands’ work that must be determined. Job classification is one thing; nature of the role is another.
56 The LexisNexis, Encyclopaedic Australian Legal Dictionary (online at 10 August 2022) defines ‘casual employee’ as follows:
In general usage, a person employed to work on an as-required basis. ‘Casual’ involves notions of informality, flexibility, uncertainty, and irregularity: Reed v Blue Line Cruises Ltd(1996) 73 IR 420. In Australian law, the expression ‘casual employee’ is not a technical term and has no fixed meaning: Doyle v Sydney Steel Co Ltd(1936) 56 CLR 545; Reed v Blue Line Cruises Ltd(1996) 73 IR 420. It may be difficult to determine whether somebody is a casual employee: Williams v MacMahon Mining Services Pty Ltd(2009) 231 FLR 59; 182 IR 104.Generally, the employee’s hours may be regular or irregular, and the work may be short-term or extend over a long period. A casual employee differs from a permanent, part-time, or temporary employee. Casuals are paid an additional amount (referred to as a loading) in lieu of benefits such as annual leave and sick leave: for example, the national minimum wage for casual employees specifies a 25 per cent loading, as do many modern awards.
57 By contrast, in industrial theory, ‘job classification’ is ‘a scheme of classifying a job according to the current responsibilities and duties associated with the job’. ‘Job Classification - Meaning, its Need and Importance’ Management Study Guide <https://www.managementstudyguide.com/job-classification.htm>.

58 Based on the foregoing, I can find no basis for the conclusion that employment type determines whether or not an industrial instrument covers an employee – unless of course the instrument says that it does.
59 Given its description in sch 2 of the Agreement, I am prepared to find that Custodial Officer (Casual) is, in itself, a job classification under the Agreement. It is the one example where the Agreement incorporates the nature of the role (casual) into the classification and ascribes a rate of pay accordingly.
60 But contrary to the Respondent’s submission, this does not mean that where an employee is engaged in a job classification included in sch 1 of the Agreement or sch 3 of the Agreement, and is also employed on a casual basis, the Agreement cannot cover them.
61 That is because the Agreement by its terms applies to all persons employed by Serco at Acacia in Western Australia, who are engaged in the job classifications set out in the schedules.
62 The Claimant was a person employed by Serco at Acacia in Western Australia, who, on the evidence, was engaged in a job classification set out in the schedule – namely, that of TCO. Consequently, during the Period of Employment the Agreement applied to him and he was covered by it.
Which Rate Of Pay Applied To The Claimant?
63 Having found that the Agreement applied to the Claimant during the Period of Employment, I now turn to consider the question whether he was paid at the correct rate. Determination of this issue requires careful consideration of the terms of the Agreement.
64 No evidence was led at trial about the negotiation of the Agreement and what might have been contemplated when certain terms were drafted. In those circumstances, I turn to the principles outlined in the case law as to the construction of industrial agreements.
65 In Automotive, Food, Metals, Engineering, Printing and Kindred Industries’ Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005, the Fair Work Commission said: Automotive, Food, Metals, Engineering, Printing and Kindred Industries’ Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 [46].

There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided, and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’. A consequence of such an approach may be that some principles of statutory construction have less force in the context of construing an enterprise agreement. For example, in Shop, Distributive and Allied Employees’ Association v Woolworths Limited, Gray ACJ held that the presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute, applied with less force in the context of an enterprise agreement:
‘Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.’ (footnotes omitted)
66 In Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208, Northrop J said:
… In Kucks v CSR Limited (1996) 66 IR 182 Madgwick J, sitting as a judge of the Industrial Relations Court of Australia, at 184 expressed his opinion on the legal principles to be applied in construing awards under the Act. I agree with that statement of principles. They have even stronger application to certified agreements. They are set out:-
‘Legal Principles
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning’.
67 The schedules to the Agreement set out job classifications with associated rates of pay in three tables.
68 Schedule 1 of the Agreement is entitled ‘Schedule 1 – Custodial Salaries (Annualised) (Including Custodial Officers engaged on or after the date of approval of this Agreement by the Fair Work Commission’. The table in this schedule includes 10 job classifications. For each classification, the table sets out:
a. Rates of pay applicable from the date the Agreement was approved by the Fair Work Commission (FWC);
b. Rates of pay applicable from 1 July 2018 (which are 1.5% higher than the rates pre-1 July 2018);
c. For both pre-1 July 2018 and post-1 July 2018, the following for each classification:
i. Hourly rate used to calculate Overtime;
ii. Annualised Hourly Rate; and
iii. Annualised Salary.
69 Schedule 2 of the Agreement is entitled ‘Schedule 2 – Casual Custodial Officer (Hourly Rate)’. The table in this schedule includes only one job classification – Custodial Officer (Casual). For that classification, the table sets out:
a. A rate of pay applicable from the date the Agreement was approved by the FWC;
b. A rate of pay applicable from 1 July 2018 (which is 1.5% higher than the rate pre-1 July 2018);
c. For both pre-1 July 2018 and post-1 July 2018, the following:
i. An Ordinary Base Hourly Rate; and
ii. A 25% casual loading on that Ordinary Base Hourly Rate.
70 Schedule 3 of the Agreement is entitled ‘Schedule 3 – Non-Custodial Salaries/Wages’. The table in this schedule includes 30 job classifications. For each classification, the table sets out:
a. Rates of pay applicable from the date the Agreement was approved by the FWC;
b. Rates of pay applicable from 1 July 2018 (which are 1.5% higher than the rates pre-1 July 2018);
c. For both pre-1 July 2018 and post-1 July 2018, the following for each classification:
i. Base Hourly Rate; and
ii. Annual Salary.
71 A comprehensive industrial instrument that pertains to a large organisation, like the Agreement, will set out job classifications and the pay rates that apply to them. This includes pay rates pertaining to increased experience within a particular classification. For example, for each of the following classifications: ‘Security Shift Custodial Officer’, ‘Case Management Custodial Officer’, ‘Canine Handlers’ and ‘Industries Custodial Officer’, sch 1 of the Agreement sets out increasing rates of pay depending on whether an employee within one of those classifications is ‘Yr 1’, ‘Yr 2’, ‘Yr 3’ or ‘Yr 4 plus’.
72 This illustrates the point that job classifications are devised according to the skill level, competencies and duties that an employee employed in a particular job classification is expected to have. This ensures that employees are adequately and fairly remunerated for the duties they perform at work.
73 As stated in paragraph 41 of this decision, the Agreement specifically defines the terms ‘Trainee Custodial Officer’ and ‘Custodial Officer’, in cl 6.3 and cl 6.4 of the Agreement respectively. They are the only job classifications specifically defined in cl 6 of the Agreement. I infer from the inclusion of separate definitions for those terms that the drafters of the Agreement intended to make a clear distinction between the two job classifications.
74 Clause 6.4 of the Agreement provides that ‘Custodial Officer’ means (broken down into its components):
a. An ‘Employee’;
b. Performing custodial functions;
c. Who is working towards completing or has successfully completed a Cert III.
75 In accordance with my finding that the Agreement covered the Claimant during the Period of Employment, I am satisfied that he was an ‘Employee’ as defined in the Agreement, fulfilling the first characteristic of a Custodial Officer.
76 The Claimant had previously (on two occasions) completed a Cert III in Correctional Practice. It would seem that perhaps Serco did not recognise these prior attainments of a Cert III, since the Claimant states in Exhibit 1 that he ‘was still required by Serco to perform training activities to obtain another Certificate 3 in Correctional Practice’. Exhibit 1 [12].
On the basis of that evidence I am satisfied that, during the Period of Employment, the Claimant was ‘working towards completing’ a Cert III. That fulfils the third characteristic of a Custodial Officer.
77 The issue that arises in this case with respect to the definition of Custodial Officer is whether the Claimant fulfilled the second characteristic – i.e., whether he was ‘performing custodial functions’.
78 The Claimant submits that he was performing custodial functions, both while he was participating in the ITC and during his time with the Intel Department. He submits that if a person meets the definition of Trainee Custodial Officer then, ‘as a matter of logic’, that person falls ‘within the umbrella’ of Custodial Officer. Transcript, 4.

79 No evidence was led at trial as to what a ‘custodial function’ is, and the Agreement does not define ‘custodial function’.
80 As to what constitutes a custodial function, I consider it is open to me to have regard to the Award to assist me on this point. The Agreement pertains to an employer – Serco – and its employees in a specific custodial setting, namely Acacia. As such, the development of the Agreement would have arisen out of a desire to create an industrial instrument intended to apply to Serco’s employees at Acacia and to ensure that those employees were better off overall than they were under the Award. As both the Award and the Agreement pertain to the same industrial context (albeit the Award is not exclusively relevant to Acacia), it seems to me the essential duties and requirements of Custodial Officers under the Agreement would be similar, if not the same, as those of Correctional Officers are under the Award.
81 Schedule B of the Award is entitled ‘Correctional Employee Classifications’. The Award does not use the classification ‘Custodial Officer’ – rather, it uses ‘Correctional Officer’. It is sensible to conclude that a Correctional Officer under the Award is equivalent to a Custodial Officer under the Agreement.
82 Clause B.2 of the Award provides:
B.2 Correctional Officer Level 1 and 2
B.2.1 A Correctional Officer is an employee who has fulfilled the training requirements set down for a Trainee Custodial Officer, or who has been assessed as meeting these requirements through the employer’s Recognition of Prior Learning (RPL) program, and whose indicative tasks will be limited to those specified therein.
B.2.2 The primary objective of the Correctional Officer is to ensure, on a day-to-day basis, provision of quality services to prisoners, including prisoner rehabilitation, case management, and to actively participate in the operation and determination of priorities of any one of the assigned areas.
B.2.3 Progression from Correctional Officer Level 1 to Level 2 is based on the satisfactory completion of the equivalent of one year of full-time service in that classification and possession of Certificate III in Correctional Practice.
B.2.4 Indicative tasks of a Correctional Officer are to:
· Supervise the behaviour and activities of prisoners on a day-to-day basis in accordance with a correctional centre’s routine or structured day.
· Interact with prisoners and respond to their needs through the provision of services in an appropriate manner in accordance with relevant legislation and the Operating Manual.
· Take part in the rehabilitation of prisoners by actively participating in and overseeing their work and program activities, particularly through prisoner rehabilitation involving the use of case management principles.
· Monitor and maintain the dynamic and static security requirements of a correctional centre, reporting orally and in writing any unusual behaviour or occurrence, which could result in a breach of security.
· Undertake searches and perform escort duties of prisoners both within a correctional centre and externally when required.
· Participate in the reception, induction, transfer and discharge of prisoners in accordance with the policy and procedures of the employer.
· Supervise and co-ordinate other custodial staff assigned within the area of responsibility.
· Participate in quality assurance teams as assigned by management, in order to assist with the implementation of quality standards throughout the centre.
· Comply with Occupational Health and Safety and Equal Employment Opportunity (EEO)/Affirmative Action requirements in accordance with relevant legislative requirements and contribute to the maintenance and improvement of safety and equity in the workplace.
83 The ‘indicative tasks’ of a Correctional Officer under the Award involve the Correctional Officer dealing directly with prisoners and maintaining the environment directly connected with the physical space the prisoners occupy – for example, ‘[m]onitor and maintain the dynamic and static security requirements of a correctional centre’.
84 In my view, the drafters of the Agreement would have had in mind the ‘indicative tasks’ set out at cl B.2.4 of the Award when they referred to ‘custodial functions’ at Acacia. Practically speaking, custodial functions involve interaction with prisoners
85 There is no evidence that the Claimant was performing custodial functions, and there is no basis for me to infer that he was. Regardless of prior experience, he was a trainee. He was participating in the ITC. I have no doubt that the ITC is designed to ready employees to transition to custodial functions, but it would defy logic to conclude that it involved employees actually performing custodial functions.
86 For these reasons, I find that the Claimant was not performing custodial functions during the Period of Employment.
87 He therefore lacked an essential job function that would have enabled him to be classified as a Custodial Officer. He was not a Custodial Officer.
Nature Of Role As A Part Of Job Classification
88 As I have noted at paragraph 60 of this decision, ‘Custodial Officer (Casual)’ is a classification under the Agreement.
89 But contrary to the Claimant’s submission, this does not mean that if someone is employed on a casual basis, that person can only fall into that job classification.
90 Whereas the Claimant’s case relied upon the Claimant falling under the umbrella of Custodial Officer and therefore being entitled to the sch 2 of the Agreement rate of pay, the Respondent pointed to the fact that the Claimant did not perform custodial functions to conclude that the Agreement simply could not apply to him at all.
91 I have found that:
a. The Agreement applied to the Claimant; and
b. The Claimant was not performing custodial functions, and therefore could not on any view be considered a Custodial Officer (Casual) for the purposes of sch 2 of the Agreement.
92 Serco paid the Claimant at the rate of $31.7524 per hour. This equates to a rate of $25.40, plus a 25% loading. I infer from this that Serco referred to sch 1 of the Agreement and used the post-1 July 2018 hourly rate to calculate overtime for a TCO, which was $25.40, and added a casual loading of 25% to that rate, as required by cl 7.4 of the Agreement.
93 Both parties seem to have a common belief that a 25% casual loading cannot be applied to any rate in sch 1 of the Agreement.
94 Both parties have been preoccupied with the presence of annualised rates of pay in sch 1 of the Agreement. Both essentially submit that because the Claimant was employed on a casual basis, sch 1 of the Agreement could not apply to him because the rates of pay in that schedule’s table are annualised. Because of this, they submit, only full-time, part-time or fixed term employees could be assigned the rates of pay in sch 1 of the Agreement.
95 I acknowledge that cl 7.4 of the Agreement begins by saying:
Employees engaged on a casual basis will be employed by the hour and paid the hourly rate of pay in the attached relevant Schedule 2.
96 On the face of it, this does give the impression that any casual employee will be paid the hourly rate of pay that appears in sch 2 of the Agreement.
97 However, in my view the following factors count against that interpretation of the clause:
a. The first sentence of cl 7.4 of the Agreement uses the phrase ‘relevant Schedule 2’ (emphasis added);
b. Clause 7.4 of the Agreement goes on to say more generally, in relation to casual employees:
… Casual Employees are entitled to a 25% loading on their ordinary hourly rate for all hours worked. Casuals are not eligible to paid [sic] redundancy, public holidays that they are not working, annual leave, personal leave, maternity leave, paternity leave, bereavement leave or blood donor leave.
98 I cannot see why the drafters of the Agreement needed to use the word ‘relevant’ if it was intended that all casual employees should fall within sch 2 of the Agreement. Schedule 2 of the Agreement can only be ‘relevant’ to casual Custodial Officers. The Claimant, of course, argues that he was a casual Custodial Officer and that is why he submits that he fell within sch 2 of the Agreement – i.e., the argument is not merely that he was a casual employee. But as I have found that the Claimant did not perform custodial functions, I also find that sch 2 of the Agreement was not ‘relevant’ to his employment.
99 The second sentence and following of cl 7.4 of the Agreement establish that any casual employee who is covered by the Agreement is entitled to a 25% loading on their ‘ordinary hourly rate’.
100 Schedule 1 of the Agreement refers to the ‘Hourly rate used to calculate Overtime’, sch 2 of the Agreement refers to ‘Ordinary Base Hourly Rate’, and sch 3 of the Agreement refers to ‘Base Hourly Rate’. In other words, none of the schedules echoes the phrase used in cl 7.4 – ‘ordinary hourly rate’.
101 As a matter of common sense, it must be possible for any employee to be employed on a casual basis. The question then arises, what rate of pay does the 25% loading attach to?
102 For casual Custodial Officers, the answer is clear because the employee’s status as a casual is part of the job classification itself. If an ‘Employee’ is a ‘Custodial Officer’ employed on a casual basis, he or she will be entitled to be paid the rate of pay set out in sch 2 of the Agreement.
103 For employees covered by sch 3 of the Agreement, the 25% loading would attach to the ‘Base Hourly Rate’.
104 In spite of the parties’ concerns about sch 1 of the Agreement and its references to annualised salaries, I cannot see any reason why Serco was not able to do what it did in this case – that is:
a. Employ someone in a job classification that appears in sch 1 of the Agreement;
b. Choose to employ that person on a casual basis;
c. Apply the 25% casual loading to the ‘Hourly rate used to calculate Overtime’ which appears alongside the relevant classification in sch 1 of the Agreement.
105 I cannot see why the presence of annualised salaries in sch 1 of the Agreement, which would be applicable to full-time employees and part-time employees (on a pro rata basis), precluded Serco from using the hourly rate which also appears in that schedule as a base rate to which a 25% casual loading could be applied for an ‘Employee’, like the Claimant, who fell within a job classification in sch 1 of the Agreement.
106 My findings are:
a. The Claimant was covered by the Agreement and the Agreement applied to him;
b. His job classification was TCO;
c. At no time during the Period of Employment did he perform custodial functions;
d. He was not a Custodial Officer – casual or otherwise; and
e. He was paid at the correct rate, being the rate of $25.40 plus a 25% loading.
Orders
107 The claim is dismissed.



E. O’DONNELL
INDUSTRIAL MAGISTRATE