Case: Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410
Outcome: cited
I should add in any event that the applicants drew attention to what appears in the joint reasons for judgment of Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410 at 420-421, as follows: 'A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin, and, express promise apart, it is only in that sense that it can be said that award rates are imported into the contract of employment. In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award and, as we have said, the award operates with statutory force to secure those terms and conditions.' And at 436 McHugh and Gummow JJ further observed: 'The evolution in the common law as to the relationship of employment has been seen as a classic illustration of the shift from status (that of master and servant) to that of contract (between employer and employee).' 37 It was common ground between the parties that members of the mining crews, such as those whereof each of the applicants were respectively members from time to time, undertook exclusively for CAO similar duties involving the driving and operation of CAO's heavy mining equipment at the HVO. The applicants submitted that they were engaged in such work at CAO over approximately four years from June/July 2001 to April/May 2005. For that purpose they were provided by CAO at 12 monthly intervals with rosters which allocated them to designated crews and indicated their working times to apply for the ensuing year. Their respective periodic shifts rotated at weekly intervals from day shifts to night shifts, including weekends on the basis of payment of overtime. On occasions the applicants worked seven days in a given week. Timesheets in evidence filled out on MES forms provided to each applicant for completion reveal that Mr Wilton worked an average of 49 hours per week in the period of time up to 20 January 2002, and Mr Cumberland worked an average of 43 hours per week over a similar time. It was pointed out by CAO that the fact that the applicants performed duties similar to certain CAO employees was not surprising, given that CAO sought to achieve uniform levels of production, and further that it was efficient as well as safe for the applicants to work in the same physical contexts as CAO's employees. 38 From January 2002 onwards the shifts worked by the respective applicants were restructured. Each of the applicants was required to work a 12 hour shift roster rather than the eight hour roster previously in operation. MES timesheets filled out by each applicant were said by the applicants to show that 12 hour shifts were worked on two, three, four and sometimes five times per week, being rostered on any of the seven days of the week. An analysis of timesheets compiled after 20 January 2002, that is, after the applicants had been working 12 hour shifts, demonstrated that from that time until 15 May 2005, Mr Wilton worked on average 40 hours per week, and from 20 January 2002 until 26 December 2004, and Mr Cumberland worked an average of 36 hours per week. 109 It was contended by CAO at the outset that in order to constitute an employment relationship, the asserted parties thereto must be in a contractual relationship. So much was said to be at least implicitly exemplified by what appears in Byrne at 421 and 436. Given the variety of ways that a relationship of employer and employee may come about, formally or informally, the effectuation or otherwise of an employment relationship will not necessarily be readily cognisable, as the discussions for instance in Ermogenous at [24] and following under heading 'Intention to create contractual relations' exemplify and in Dalgety Farmers at [4] imply, see also the reference of Kirby A-CJ at [5] of Dalgety Farmers as to the need '... to look to the circumstances of the engagement and to ascertain who it was that offered employment, and whether the worker accepted that offer' .