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Cai v Tiy Loy & Co Ltd (No.2) [2015] FCCA 2924 (30 October 2015)

Last Updated: 4 November 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

Applicant:

REE BIN CAI

REPRESENTATION

ORDERS

(1) Paragraph 19 of the points of claim shall be taken to have been amended by the insertion after the words “a caretaker” the words “or in the alternative, a tea attendant”.
(2) Paragraph 14 of the respondents response to the amended application is taken to have been amended by the removal of the words “and says that . . . as defined within NAPSA.”

DECLARATION

(3) Up to and including 30 June 2012 the applicant was employed by the respondent as a tea attendant within the meaning of that expression as defined in cl.3(iii) of the Miscellaneous Workers General Services (State) Award.

ORDER

(4) The parties have liberty to apply to list the matter for hearing on all outstanding issues, including the assessment of compensation and the imposition of penalties.

SYG 2817 of 2012

REE BIN CAI

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 27 March 2015 I delivered reasons for judgment (earlier judgment) in which I found that the respondent (Tiy Loy) contravened s.340 of the Fair Work Act 2009 (Cth) (FW Act) by deciding to alter the position of the applicant, Mr Cai, from a full time to a part time employee.^[1] I also found Mr Cai was not a “caretaker” for the purposes of the Miscellaneous Workers General Services (State) Award (State Award) and the Miscellaneous Award 2010 (2010 Award). I granted the parties liberty to apply to list the matter before me to hear submissions on the amount of compensation I should award to Mr Cai, the imposition of penalties, and the outstanding claim for the payment of a 17.5% loading for annual leave taken by Mr Cai. The matter was then listed before me for hearing on 7 July 2015.
2. Before the hearing on 7 July 2015, however, counsel for Mr Cai filed written submissions in which he claimed that:
   1. Tiy Loy admitted in its response to amended application (points of defence) that it had employed Mr Cai as a tea attendant, and that Mr Cai, therefore, was covered by the State Award and the 2010 Award as a tea attendant;
   2. Mr Cai was paid amounts that were substantially less than the amounts he was entitled to be paid under the State Award and the 2010 Award as a tea attendant; and
   100. the Court should order that Tiy Loy pay to Mr Cai an amount that reflects the difference between what Tiy Loy paid to Mr Cai, and the amounts Tiy Loy ought to have paid Mr Cai as a tea attendant under the awards.
3. Mr Cai made no such claim at the substantive hearing. The claim Mr Cai made, which I determined against him, was that he was a “caretaker” within the meaning of the State Award. Having decided that claim against him, I assumed the State Award and the 2010 Award did not apply to Mr Cai.
4. At the hearing on 7 July 2015, the parties made submissions on the following three issues: (a) whether it is open to Mr Cai now to claim he was employed as a tea attendant, even though at the substantive hearing he made no such claim; (b) assuming it is open to Mr Cai to claim he was a tea attendant, whether Tiy Loy is prevented, without amending its points of defence, from contending Mr Cai was not employed as a tea attendant; and (c) assuming Tiy Loy is not prevented from so contending, whether Mr Cai, as he now claims, was employed as a tea attendant or, as Tiy Loy claims, Mr Cai was not employed as a tea attendant and, therefore, was award free.
5. These reasons for judgment deal, therefore, with these three issues. The starting point is to identify the issues the parties tendered to the Court, and the findings I made on those issues.

The pleadings

6. Proceedings for relief under the FW Act that are brought in this Court are in part regulated by Part 45 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Relevant to these reasons are r.45.06 and r.45.08. Rule 45.06 provides that an application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the FW Act must, among other things, accord with the approved form, and must be accompanied by a claim in accordance with the approved form. Rule 45.08 of the FCC Rules provides that an application for an order in relation to an alleged contravention, or an alleged proposed contravention, of a general protection mentioned in Part 3-1 of the FW Act, other than a claim covered by r.45.06 of the FCC Rules, must also accord with the approved form, and must also be accompanied by a claim in accordance with the approved form. The FCC Rules provide a common form of application, but different forms of claim.^[2] Both forms of claim, however, require the applicant to complete a part headed “Contravention(s) alleged”, and invite the applicant to answer the question “what are the grounds for the claim” by setting out “in numbered paragraphs the facts relied on and the provisions of the Fair Work Act relevant to the claim”.
7. The rules that regulate the manner of responding to applications and claims for relief under the FW Act are those that apply to all applications filed with the Court. Rule 4.03(1) of the FCC Rules provides that a respondent to an application may file a response in accordance with the approved form. Rule 4.04(1) of the FCC Rules provides that the response may indicate a number of matters, including a request that the Court dismiss the application. Rule 4.05(1) provides that a person filing an application or response must also file an affidavit stating the facts relied on. That is not required, however, in most cases where an applicant files an application under Part 45 of the FCC Rules.^[3] Nor is it necessary for a person who files a reply to also file an affidavit where the person filing the application also files a statement of claim or points of claim.^[4]
8. At the substantive hearing Mr Cai relied on the amended application he filed on 26 July 2013. By that application Mr Cai sought the orders “set out in the claim filed with this application and the “Amended Application” annexed hereto”. The amended application is a separate document titled “Amended Application” by which Mr Cai sought orders under the Workplace Relations Act 1996 (Cth) (WR Act) and the Fair Work Act 2009 (Cth) (FW Act) that Tiy Loy pay amounts owing to him under the State Award and the 2010 Award.
9. Mr Cai also relied on a claim which he filed on 26 July 2013. That claim is the same as the claim Mr Cai filed when he commenced the proceedings except it attaches a document titled “Points of Claim”. The relevant allegations made in the points of claim are as follows.
   1. Mr Cai was employed by Tiy Loy to perform work in the business “primarily the provision of general services, including but limited to cleaning, purchasing food, preparing food, [and] conducting errands general maintenance tasks, being present at the premises ensuring convenient use thereof and of collecting fees from patrons”.^[5]
   2. When he was first employed, he was covered by the State Award, the terms of that award continued to apply to him up to and including 26 March 2006, and that, in his employment with Tiy Loy, Mr Cai was “a caretaker and entitled to be paid at all times under the terms and conditions of the” State Award.^[6]
   100. On and from 27 March 2006, as a consequence of cl.31 of Schedule 8 to the WR Act there came into operation a notional agreement preserving the State Award (NAPSA) in relation to Tiy Loy’s business; and that, because of s.208 of the WR Act, the amounts that were payable to Mr Cai under the State Award were taken to be “Australian Pay and Classification Scales” (APCS).^[7]
   4. On and after 1 July 2009 the entitlements Mr Cai had under the NAPSA became enforceable under the provisions of the FW Act and that, as from 1 January 2010, the NAPSA was replaced by the 2010 award.^[8]
   5. Mr Cai was underpaid an amount of $322,013.97.^[9] The particulars of how that amount has been calculated are set out in Annexure “A” to the points of claim. That annexure contains allegations of the days and hours Mr Cai worked.
10. Tiy Loy responded to the points of claim by filing a response to amended application, which I have already in these reasons referred to as points of defence. In its points of defence:
    1. Tiy Loy admitted Mr Cai was employed to perform work in the business primarily to provide “general services, including but limited to cleaning, purchasing food, preparing food, [and] conducting errands”. ^[10] It denied, however, Mr Cai also engaged in “general maintenance tasks, being present at the premises ensuring convenient use thereof and of collecting fees from patrons”.^[11] Tiy Loy alleged Mr Cai’s “primary task was the making and/or serving of morning, afternoon tea, and lunches, preparing tea for card players, including washing up and other duties in connection with that work”.^[12]
    2. Tiy Loy admitted that the State Award covered Mr Cai.^[13] It denied, however, Mr Cai was a caretaker;^[14] Tiy Loy alleged Mr Cai “is properly characterised as a Tea Attendant under the” State Award.^[15]
    100. Tiy Loy admitted a NAPSA came into operation in relation to the State Award, and that the amounts that were payable to Mr Cai under the State Award were taken to be APCS. Tiy Loy denied, however, Mr Cai was entitled to be paid not less than a caretaker as defined within the NAPSA and at the hourly rates contained in the APCS; Tiy Loy alleged Mr Cai “was entitled to be paid no less than a Tea Attendant as defined within the NAPSA”.^[16]
    4. On and from 27 March 2006, as a consequence of cl.31 of Schedule 8 to the WR Act, there came into operation a NAPSA in relation to Tiy Loy’s business; and that, because of s.208 of the WR Act, the amounts that were payable to Mr Cai under the State Award were taken to be APCS.^[17]
    5. Tiy Loy admitted that on and after 1 July 2009 the entitlements Mr Cai had under the NAPSA became enforceable under the provisions of the FW Act and that, as from 1 January 2010, the NAPSA was replaced by the 2010 award. ^[18]
    6. Tiy Loy denied Mr Cai was underpaid an amount of $322,013.97.
11. Relevant to the matters that presently concern me, three broad issues arose on Tiy Loy’s response to Mr Cai’s points of claim:
    1. Did Mr Cai undertake the work he said he undertook during the days and times on which Mr Cai claimed he undertook that work?
    2. Having regard to the work Mr Cai undertook, and the days on which and the times over which he undertook that work, was Mr Cai a “caretaker” within the meaning of the State Award, as Mr Cai claimed?
    100. Depending on the answer to (b), did Tiy Loy pay to Mr Cai during the six years proceeding the date on which he commenced the proceedings amounts less than Tiy Loy ought to have paid Mr Cai?
12. I made findings in relation to the first of these issues in favour of Mr Cai, and decided the second issue against Mr Cai. I did not make any findings in relation to the third issue because, as I understood the issues that were tendered to the Court, it would arise only if I were to answer the second of the issues in favour of Mr Cai.

Is it open to Mr Cai to claim on the current state of the pleadings that he was employed as a tea attendant?

13. Counsel for Mr Cai submits that, on the current state of the points of claim and points of defence, it is not only open to Mr Cai to claim Tiy Loy employed Mr Cai as a “tea attendant” within the meaning of the State Award; it is not open to Tiy Loy to deny that Mr Cai was employed as a “tea attendant”. The resolution of these submissions requires a little analysis of the nature and significance of the points of claim and points of defence Mr Cai and Tiy Loy filed respectively.
14. Mr Cai elected to state his claims by filing points of claim. Tiy Loy elected to state its case in response to the points of claim by filing a response to amended application which was but in name points of defence. Paragraph (b) of r.4.05(2) of the FCC Rules permits an applicant to rely on points of claim rather than an affidavit. Although the expression “points of claim” is not defined in the FCC Rules, it has a well-known meaning in civil litigation and in arbitration. Points of claim set out in summary form the material facts on which the applicant relies for claiming he or she is entitled to a remedy. To that extent, points of claim are no different from a statement of claim.
15. Points of claim also serve the same purposes as a statement of claim: they give to the respondent notice of the case the applicant makes against the respondent; and, when served, they invite the respondent to identify the facts alleged in the points of claim with which the respondent takes issue, and to state any additional facts on which the respondent wishes to rely in its defence. The respondent does these things by preparing and serving a document titled “points of defence”. To that extent, points of defence are in substance the same as a defence that is filed in response to a statement of claim. Points of defence also serve the same purposes as a defence: they notify the applicant of the case the applicant will have to meet; and they notify the Court of the issues of fact the Court is required to adjudicate at trial.
16. Given that points of claim and points of defence serve the same purposes as statements of claim and defences, it is appropriate that rules that apply to pleadings should also apply to points of claim and points of defence, subject to any necessary modification. The rules relating to pleading that are relevant to proceedings before this Court are those rules contained in Part 16 of the Federal Court Rules 2011 (Cth) (FCR) as are referred to in Part 2 of Schedule 3 to the FCC Rules.^[19] Of particular relevance is r.16.02(1)(d) and (3) of the FCR:

A pleading must:
. . . .

(d) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and

(e) state the provisions of any statute relied on . . .

17. Ignoring for the moment that portion of Tiy Loy’s defence on which Mr Cai relies, I am of the opinion that if Mr Cai intended to rely on his being a tea attendant, he was required to specifically refer to the relevant provisions of the State Award and of the 2010 Award. That, at the very least, would have required Mr Cai to allege he was employed as a “tea attendant” within the meaning of the State Award.
18. Counsel for Mr Cai submitted that by Tiy Loy’s allegation in its points of defence that Mr Cai was employed as a tea attendant, it necessarily followed that when considering the final orders the Court should make, the Court should treat Mr Cai as having been employed as a tea attendant for the hours I found Mr Cai had worked.^[20] I do not accept that submission.
19. Mr Cai did not allege he was employed as a tea attendant. Tiy Loy’s allegation in its points of defence that Mr Cai was a tea attendant, therefore, could not constitute any admission in relation to any part of Mr Cai’s case. Tiy Loy’s allegation that Mr Cai was a tea attendant was a positive allegation of fact on which Tiy Loy relied to defeat Mr Cai’s claims he was a caretaker. It was an issue between the parties which I did not resolve in my reasons for judgment. Further, Tiy Loy’s allegation that Mr Cai had been employed as a tea attendant must be seen in the context of Tiy Loy’s case as a whole. Tiy Loy claimed Mr Cai worked as a tea attendant, but for only forty hours a week. If, therefore, Tiy Loy’s allegation that Mr Cai worked as tea attendant is to be treated as an admission, the admission would incorporate the factual premises on which that allegation was based, namely, that Mr Cai worked no more than 40 hours a week. Even if Mr Cai were to ask the Court to make orders on the basis of those premises, that would not be possible because I have made findings of facts that are inconsistent with this part of Tiy Loy’s case.
20. Mr Cai’s counsel also relied on the following passages from Tiy Loy’s written submissions provided at the substantive hearing:
    22. No issue arises in this case as to whether there is an employer/employee relationship or that the Respondent is bound by the awards.
    23. The issues in dispute concern the work carried out by the employee, the days, time and hours on which the work was performed. These are factual questions for the Court to determine.
    24. On determining these factual questions it is a question of the application of the awards to the findings to determine the extent of any underpayment. Once findings are made by the Court the parties ought calculate the amount of any underpayment in accordance with the findings.
21. Given the submissions counsel for Tiy Loy made at the hearing of 7 July 2015, it is certainly possible to read these passages as an admission by Tiy Loy that Mr Cai was employed either as a caretaker or as some other category of employee defined in the State Award or 2010 Award. Indeed, at the hearing of 7 July 2015, counsel for Tiy Loy, who did not appear at the substantive hearing, went so far as to submit that Tiy Loy’s previous counsel was of the erroneous view that Mr Cai had to fall within one of the classes of employees defined in the State Award. In my opinion, however, these submissions are based on hindsight and, for that reason, I do not accept them.
22. During the hearing, Mr Cai claimed he was a caretaker within the meaning of that expression as used in the State Award, and that he worked around 90 hours a week. Tiy Loy, on the other hand, claimed Mr Cai was a tea attendant who worked only 40 hours a week. That was the contest between the parties. It is unreasonable to interpret counsel’s written submissions as also accepting that if the Court found that Mr Cai worked for 90 hours a week doing the work Mr Cai claimed he performed that he would be classified as having done so as a tea attendant. It would be unreasonable to so interpret counsel’s written submissions because Mr Cai simply did not claim he was a tea attendant.
23. I conclude, therefore, that:
    1. Mr Cai was required specifically to allege in his points of claim or in some other document that he was employed by Tiy Loy as a tea attendant for the purposes of the State Award and the 2010 Award; and
    2. there is nothing in Tiy Loy’s points of defence or in the manner in which counsel for Tiy Loy conducted Tiy Loy’s case at the substantive hearing that relieved Mr Cai from having to raise in some formal or informal way that he was claiming that, in the alternative to his claim that Mr Cai was employed as a caretaker, Mr Cai was employed as a “tea attendant” for the purposes of the State Award and the 2010 Award.
24. The next question, then, is whether Mr Cai can now claim he was employed as a “tea attendant”.

Should leave be granted to Mr Cai to claim he was employed as a tea attendant?

25. Tiy Loy submits that Mr Cai should not be permitted to change his case “and seek to rely upon that which it has previously expressly disavowed”.^[21] To do so, Tiy Loy submits, would be to permit Mr Cai “to approbate and reprobate in relation to the manner in which [Mr Cai] has sought to pursue award classification in this case”.^[22]
26. What Tiy Loy intended to mean by “approbate and reprobate” was not further explored in its written submissions, nor developed by its counsel during the hearing on 7 July 2015. The expression “approbate and reprobate” is used in a number of different legal contexts and applies in circumstances where a person seeks to retain a benefit yet renounce a burden that is attached to or associated with the benefit. An example is equitable election.^[23] No question of approbation and reprobation, however, arises out of Mr Cai’s intention to claim that, contrary to what he submitted at the substantive hearing, Mr Cai was employed as a tea attendant. Whether or not Mr Cai should be permitted to now make such a claim is to be determined by the principles that apply to the amendment of pleadings.
27. Rule 7.01 of the FCC Rules provides that the Court “may allow or direct a party to amend a document . . . in the way and on the conditions the Court . . . thinks fit”. This is a variation of rules which are to be found in the rules of other courts When applied to applications to amend pleadings, the general principle is that:^[24]

leave to amend should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for. These considerations require the Court to take account of the nature of the proposed amendment, whether it is made in good faith, the stage in the proceedings at which leave is sought, the nature of the prejudice that may be caused and the means by which such prejudice might be redressed. The question of delay is relevant to these considerations however it is not the purpose of the Court to punish a party for delay in seeking an amendment.

28. Leave to amend a pleading may also be permitted after the close of evidence. That may be so if, as the course of a trial progresses, evidence emerges which supports a case that does not conform with the pleadings. Thus, it has been said:^[25]

Part 20, r 1(2) of the New South Wales Supreme Court Rules provides that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings. Now, and for many years past, a plaintiff does not fail by being refused leave to amend or through failure formally to apply for amendment, where the evidence has disclosed a case in the cause of action fit to be determined by the tribunal of fact. Particularly is this so when the action finally determines the rights of the parties in the cause of action.

29. In my opinion, it would be in the interests of justice to allow Mr Cai to amend his points of claim to permit him to allege in the alternative that he was employed as a tea attendant. There is no suggestion that Tiy Loy would have conducted its case differently had Mr Cai alleged that, in the alternative to the allegation that he was employed as a caretaker, he was employed as a tea attendant. The only fresh issue that will arise if I were to permit Mr Cai to amend his pleading is whether, on the facts I have found, Mr Cai was employed as a tea attendant. That this would raise no difficulties is supported by the manner in which the hearing on 7 July 2015 was conducted. Counsel for Tiy Loy made submissions on the question; and it is to those submissions I now turn.

Was Mr Cai employed as a tea attendant?

30. Whether or not Mr Cai was a “tea attendant” within the meaning of the State Award is to be answered by reference to the terms of the Award and the work I have found Mr Cai performed. The starting point is the construction of the definition of “tea attendant”.

Construction of definition of “tea attendant”

31. Clause 3(iii) of the State Award defines “tea attendant” as follows:

Tea attendant means an employee engaged either wholly or for the major and substantial part of such employee’s working time making and/or serving morning or afternoon teas or lunches or other meals, including washing up and other duties in connection with such work.

32. The first matter to consider is the meaning of the word “engaged”. To “engage” a person means to bind a person to the performance of a promise or an undertaking that the person has made or given by the acceptance of that promise or undertaking. It may also mean the performance of that which has been promised or undertaken. In cl.3(iii) of the State Award, “engaged” bears the second meaning. It means the performance by the employee of the work the employee has promised to undertake. Second, cl.3(iii) of the State Award identifies the work the employee must have performed, namely, the “making and/or serving morning or afternoon teas or lunches or other meals, including washing up and other duties in connection with such work” (Required Activities). Third, cl.3(iii) of the State Award requires that the employee performed the Required Activities either “wholly” or for the “major and substantial part” of the employee’s working time. “Wholly”, as it applies to the employee’s working time, means the employee’s entire working time.
33. Where an employee is not wholly engaged to perform the Required Activity, to be a “tea attendant” the employee must engage in the Required Activity for a part of the employee’s working time; and that part of the employee’s working time must be the “major and substantial part” of the employee’s working time. The ordinary meaning of the word “major” includes “unusually important, serious, or significant; main, chief, principal, leading”; and the ordinary meaning of “substantial” is “of real significance, weighty; reliable; important, worthwhile”. Thus, cl.3(iii) of the State Award requires that that part of the employee’s working time during which the employee performs the Required Activities must constitute the main, principal, leading, and substantial part of the employee’s working time.
34. I have so far attempted to explain the ordinary meaning of the expression “major and substantial”. That expression, however, has been used in the application of “the principle of major and substantial employment”, a principle which “is almost as old as industrial arbitration”.^[26] That principle was applied to determine which of two possibly applicable awards governs a particular employment:^[27]

The question of the award to be applied to an employee who is partly on work covered by one award and partly on work covered by another has been the subject of discussion in a number of cases ... [These] generally are to the effect that if a person’s employment involves performing work covered by more than one award he is deemed to be covered by the award which applies to the major and substantial part of his employment. This, however, is a rule of construction only and must give way to the clear language of an award.

35. There has been a division of opinion about whether the principle applies only in that context, or whether it may be applied to determine whether an award applies to a particular employment. Recently, however, Logan J in Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd held that the following passage from the reasons for judgment of Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd should not be confined to a case where it is necessary to choose as between which of two industrial instruments applies to particular employment:^[28]

It seems to me that this is clearly a case to which this principle is applicable. This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and contain elements which have taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.

36. Logan J added:^[29]

A pithy way of putting the same proposition is that both quality and quantity are relevant when it comes to employee classification, subject always to the language employed in the particular industrial instrument.

37. The use of the expression “major and substantial part” in the definition of “tea attendant” in cl.3(iii) of the State Award may suggest that the intention of the State Award was that the question of whether or not a particular employee is a “tea attendant” was to be determined by applying the principle of major and substantial employment. In my opinion, however, that principle offers little assistance to determining in any given case whether the Required Activity formed the major and substantial part of an employee’s work time. Paragraph (iii) of cl.3 requires the identification of the time the employee has undertaken the Required Activities and the assessment of whether that time constitutes a major and substantial part of the employee’s work time. In other words, the thing cl.3(iii) of the State Award requires to be assessed for its substantiality is the time during which the Required Activities take place; and the substantiality of that time must be assessed by reference to the employee’s work time.

Submissions

38. Counsel for Tiy Loy submitted that before I can conclude on the basis of the findings I made in my earlier judgment that Mr Cai was employed as a tea attendant I must be positively satisfied that that was so, and that Mr Cai positively fell within that classification of employee. Counsel also relied on the following passage from the reasons of decision of the Australian Industrial Relations Commission in Carpenter v Corona Manufacturing Pty Ltd:^[30]

In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not ‘‘employed in the process, trade, business or occupation of . . . soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials’’ and was not, therefore, covered by the award.

39. Counsel submitted that, on the findings I made, I could not be satisfied Mr Cai was employed as a tea attendant. Counsel submitted that, on my findings, Mr Cai was retained in part to serve tea, in part to ensure the general upkeep of the premises, in part to run errands, in part to monitor who enters the premises, and, in part, to collect money from mahjong players. Counsel submitted that “jack of all trades” might be an apt description of the tasks Mr Cai undertook. Counsel also relied on the absence of evidence of the times Mr Cai spent undertaking each of the different tasks. Counsel relied on my finding^[31] that in the conversation between Mr Cai and Mr Huan to which I refer in paragraphs 9-16 of my earlier judgment Mr Wong described the duties Mr Cai was expected to perform, and that these at the very least included washing up, keeping the floors and bathroom clean, including replacing toilet paper and soap, and making tea. Counsel submitted that this disclosed no dominant purpose of the work Mr Cai was expected to perform.
40. Counsel for Mr Cai, on the other hand, referred to my having recorded in my earlier judgment Mr Wong’s having accepted that it was Mr Cai’s duty to keep members of the community who attended the premises after 6 pm served with tea.^[32] Counsel submitted that Mr Cai’s performance of this duty after 6 pm constituted by itself the major and substantial part of his employment.

The major and substantial part of Mr Cai’s employment

41. The question I must consider is whether, on the basis of the findings I made in my earlier judgment, I am satisfied Mr Cai undertook work that consisted of the Required Activities; and the time during which he undertook those activities constituted the major and substantial part of his work time. This may be approached by setting out in one column all activities that Mr Cai, on my findings,^[33] performed when employed by Tiy Loy and setting out in another column which of those activities constituted the Required Activities:

42. Apart from the preparation of dinner, there is no evidence of the time Mr Cai devoted to each of these activities. Nevertheless, from the nature of the activities, it is possible to obtain a sound sense of the time Mr Cai devoted to each activity relative to the other activities.
43. The duty to serve tea appears to be the duty that occupied the single largest block of time relative to the others. That is a duty that rested on Mr Cai on each day he worked. Mr Cai did not, of course, serve tea every minute of every hour of every day; his duty to serve did not require him to do that. Mr Cai’s duty required him to be available to ensure that tea was served to Tiy Loy’s members and staff. The next largest block of time would appear to be that of cooking, including activities associated with cooking and associated activities. That involved Mr Cai preparing at least three meals every working day and supper, on busy nights. These activities – serving tea, cooking, and cleaning associated with cooking – by themselves satisfy me that Mr Cai performed these activities during a time that was the major and substantial part of Mr Cai’s total work time.
44. For these reasons, I am of the opinion that Mr Cai was employed as a “tea attendant” within the meaning of the definition contained in cl.3(iii) of the State Award.

Disposition

45. I propose to:
    1. order that paragraph 19 of the points of claim be taken to have been amended by the insertion after the words “a caretaker” the words “or in the alternative, a tea attendant”;
    2. order that paragraph 14 of the points of defence be taken to have been amended by the removal of the words “and says that . . . as defined within NAPSA”;
    100. make a declaration to the effect that Mr Cai was employed by Tiy Loy as a tea attendant within the meaning of cl.3(iii) of the State Award; and
    4. grant the parties liberty to apply to list the matter for hearing on all outstanding issues, including the amount of compensation that Mr Cai should be awarded having regard to these reasons and penalties.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 30 October 2015

^[1] Cai v Tiy Loy & Co Ltd [2015] FCCA 715
^[2] Forms 2 and 4 respectively.
^[3] R.4.05(2)(c) and r.45.09 of the FCC Rules.
^[4] R.4.05(2)(b) of the FCC Rules.
^[5] Points of claim, [6]
^[6] Points of claim, [10], [11], and [12]
^[7] Points of claim, [13]-[18]
^[8] Points of claim, [25]-[30]
^[9] Points of claim, [45]
^[10] Response to amended application, [7]
^[11] Points of claim, [6]; Response to amended application, [7]
^[12] Response to amended application, [7]
^[13] Response to amended application, [11]
^[14] Response to amended application, [12]
^[15] Response to amended application, [12]
^[16] Response to amended application, [14]
^[17] Points of claim, [13]-[18]
^[18] Response to amended application, [17]
^[19] Under r.1.05(3)(b) of the FCC Rules, the provisions of the FCR set out in Part 2 of Schedule 3 to the FCC Rules apply, with necessary changes, to general federal law proceedings in the Court.
^[20] I made a finding about the hours Mr Cai worked up to 7 January 2010 (earlier judgment, [31]). Although at [39] of my earlier judgment I referred to Mr Cai’s evidence in relation to the hours Mr Cai worked, I made no express finding about that matter.
^[21] Outline of Submissions of the Respondent, 6 July 2015, [9]
^[22] Outline of Submissions of the Respondent, 6 July 2015, [9]
^[23] Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 at [57]: “Equity fastens upon the conscience of a party taking under a deed or will and requires the party to choose between taking the benefit and accepting the burden of any stipulated conditions or rejecting the benefit. Viscount Maugham explained in this connection that the phrase “you may not both approbate and reprobate”, which was derived from the civil law and “from the northern side of the Tweed”, when used in English law was but a synonym for the equitable doctrine of election.”
^[24] Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8] (Stone J)
^[25] Leotta v Public Transport Commission (1976) 9 ALR 437 at page 446 (Stephen, Mason and Jacobs JJ)
^[26] Ware v O’Donnell Griffin (Television Services) Pty Limited [1971] AR (NSW) 18 quoted by Moore J sitting in the Industrial Relations Court in Logan v Otis Elevator Company Pty Limited [1997] IRCA 200 at page 36.
^[27] Federated Engine Drivers and Firemen’s Association of Australasia v Maffra Co-operative Milk Products Co Ltd (1940) 42 CAR 836 at page 837 quoted by Logan J in Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696 at [35]; see also Logan v Otis Elevator Company Pty Limited [1997] IRCA 200 at page 36
^[28] Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Limited [2015] FCA 696 at [38]
^[29] Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Limited [2015] FCA 696 at [39]
^[30] (2002) 122 IR 387 at [9]
^[31] Cai v Tiy Loy & Co Ltd [2015] FCCA 715 at [17]
^[32] Cai v Tiy Loy & Co Ltd [2015] FCCA 715 at [31]
^[33] Cai v Tiy Loy & Co Ltd [2015] FCCA 715 at [22], [31], [89(c)]