Barabas, Ronald v Corporate Security Services Pty Ltd (Formerly Prime Security Co (Aust) Pty Ltd)

[1997] FCA 1038

FEDERAL COURT OF AUSTRALIA

Workplace Relations Act 1996 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336

RONALD BARABAS v CORPORATE SECURITY SERVICES PTY LTD (formerly PRIME SECURITY CO (AUST) PTY LTD) ACN 067 749 919.
VG 367 of 1997.

Before:  MURPHY JR
Place:  MELBOURNE
Date of Hearing:      30 SEPTEMBER 1997
Date of Judgment:    30 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 367  of   1997

BETWEEN:	RONALD BARABAS Applicant
AND:	CORPORATE SECURITY SERVICES PTY LTD (formerly PRIME SECURITY CO (AUST) PTY LTD ACN 067 749 919) Respondent
JUDGE:		MURPHY JR
DATE OF ORDER:		30 SEPTEMBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The name of the respondent is amended to Corporate Security Services Pty Ltd (formerly Prime Security Co (Aust) Pty Ltd) ACN 067 749 919.

1. The respondent, within fourteen days, pay to the applicant the sum of $2,873.36 together with interest at the rate of twelve per centum per annum from 29 September 1996 to date.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 367 of 1997

BETWEEN:	RONALD BARABAS Applicant
AND:	CORPORATE SECURITY SERVICES PTY LTD (formerly PRIME SECURITY CO (AUST) PTY LTD) ACN 067 749 919 Respondent

JUDGE:	MURPHY JR
DATE:	30 SEPTEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The applicant's  affidavit evidence was that he joined a company, and was handed an employment application form, entitled "Prime Security Co. (Aust.) Pty Ltd" at Mahoneys Road, Forest Hill when he attended for an interview on 23 June 1994.  His evidence was that he remained employed with that company until he ceased employment in September 1996.  From time to time he clarified various of his employment entitlements. 

It appears that in July 1996 he made an application for unlawful termination under Part VIA of the then Industrial Relations Act 1988 (Cth).  Those proceedings were ultimately compromised in May 1997.  He named his employer in those proceedings as “Prime Security”.  Those proceedings were the subject of contentions of fact and law that are in evidence in these proceedings.  The applicant's contentions, which were filed on 21 February 1997, allege that he was employed by the respondent as a casual security officer under the classification pursuant to the Security Employees Award Victoria 1993, to which the respondent is named as a party.  He alleged that after 23 August 1996 he was not provided with any work and he alleged that he had been wrongfully terminated from his employment. 

The respondent filed contentions of fact and law, signed on the respondent's behalf on 2 May 1997 by Comlaw, solicitors for the respondent.  Those contentions were headed with the name of the respondent as Prime Security Pty Ltd.  In paragraph 1 it agrees with paragraph 1 of the applicant's contentions of fact and law, but denies paragraph 2.  In evidence, Mr Sciberras said that those contentions contained an error.  He did not indicate that the statements in paragraphs 7 or 8 contained an error. In paragraph 8 the respondent stated that there had been no termination of the applicant's employment, and further stated that if there was a termination it was for a valid reason, being an inability to find suitable work for the applicant because of his poor work performance and attitude to clients.

The applicant annexed to his affidavit a leave application form dated 25 September 1996, that was headed "Prime Security Co. (Aust.) Pty Ltd".  The respondent contended that Prime Security Co. (Aust.) Pty Ltd was not the employer of the applicant but an earlier company by the same name, incorporated in 1993 (ACN 061 072 455).  This company from 9 January 1995 was named Security and Electronic Services Pty Ltd, and was dissolved on 18 September 1996. 

It is clear that the applicant was employed by some entity after the dissolution of the company that was known as Prime Security Co (Aust.) Pty Ltd when he commenced employment.  Shortly prior to 29 September 1996, when the applicant ceased employment, he had been provided with an annual leave form with a heading in the name Prime Security Co (Aust) Pty Ltd. 

Decisive in my consideration of this matter are events that occurred in May 1997.  In May 1997 two documents were filed in the unlawful termination proceedings.  The first was the contentions of fact and law already referred to.  The second was the terms of settlement.  The terms of settlement recite in paragraph (a) that the respondent was employed by Prime Security Pty Ltd from June 1994 until September 1996 and that he became redundant in September 1996.  The terms of settlement were headed “Prime Security Pty Ltd”.  The agreed payment under those terms of settlement is described as a bona fide redundancy payment and there is a release from certain entitlements, except annual leave entitlements that the applicant may have been entitled to. 

At that time Prime Security Co (Aust.) Pty Ltd (ACN 067 749 919), the present respondent, was the registered name of the respondent.  The company that had earlier held that name (ACN 061 072 455), incorporated in 1993, had, as I have indicated, been dissolved in September 1996.  Those terms of settlement then can only be referable to the respondent and they confirm continuity of employment with the respondent until September 1996. 

That is where the question of the transmission of business and the provisions of the award are relevant.  The award names a number of variations of Prime Security:  “Prime Security Scoresby”, “Prime Security Pty Ltd of Ringwood”, “Prime Security of Port Melbourne” as respondents to the award.  It also names “Proteck Security Services Pty Ltd” and “Proteck Security Industries” as respondents.  Clause 37(1) of the award provides for a transmission of business, and that the continuity of the employment is deemed not to be broken by reason of transmission of business.

It was the applicant's evidence, essentially uncontested, that there was no break in the continuity of his employment.  He annexed to his affidavit his pay slips, which he said he received for the entire period of his employment.  They name him as employee number 117 for that entire period.  That is consistent with continuity of employment.  Such continuity of employment is not inconsistent with the original Prime Security Co. (Aust.) Pty Ltd (ACN 061 072 455) transmitting its business to the respondent. 

Counsel for the respondent relied on evidence from Mr Sciberras that in fact the applicant's employment had been transferred to the company Proteck Services Pty Ltd.  In support of that submission, a group certificate was exhibited for the year ended 30 June 1997 which indicated that the applicant was employed by that company for the period from 1 July 1996 until 29 September 1996.  That group certificate was issued on 14 July 1997.  It describes the employer as “Proteck Services Pty Ltd trading as Prime Security Co”.  No business name history as to “Prime Security” was produced in Court.  In those circumstances, in terms of the operation of the corporate entity that traded under the name “Prime Security”, I see the Australian Securities Commission material as more probative. 

Mr Sciberras' evidence was that in fact the applicant's employment had been transferred to Proteck Services Pty Ltd earlier in the financial year ended 30 June 1996, yet the group certificate for the year ended 30 June 1996 refers to him being employed by “Prolink Services Pty Ltd”, also trading as “Prime Security”.  If the evidence of Mr Sciberras that in fact the applicant was at the time of his termination employed by Proteck Services Pty Ltd is to carry weight, it would have carried more weight had the group certificates truly reflected his evidence.  Given that that group certificate was generated after the contentions of fact and law and the terms of settlement documents were generated, I place greater weight on those documents. Those documents made no reference to Proteck Services Pty Ltd as the employer. 

Counsel for the respondent asserted that those documents had never been tested in court.  That is true.  But they stand as significant evidence, before these proceedings were on foot, that an entity describing itself as Prime Security Pty Ltd was holding itself out as the employer of the applicant, and the transmittee of any business that employed the applicant over the period of his employment.

Counsel for the respondent asserted that a Briginshaw v Briginshaw (1938) 60 CLR 336 onus applied to the applicant to make out his claim in these circumstances. I do not accept that submission. Because the employment status of an employee is known to the respondent employer, the respondent carries a heavier onus as to the employment entity of any one of its individual employees, particularly when the applicant's unchallenged evidence was for the entire period of his employment he had not been told of any transmission or change of his employment. Further he had the single employee number and continued to have a badge naming him as a Prime Security Co. employee.

Thus, although underneath the employment relationship there may have been changes in corporate entities, as far as the applicant was concerned, he remained employed by whatever corporate entity was operating at Scoresby.  That is where these later documents corroborate the material from the Australian Securities Commission and in particular the fact that the original Prime Security Co. (Aust.) Pty Ltd (ACN 061 072 455) was dissolved on 18 September 1996.  The applicant was employed by an entity after that, and I am satisfied on the balance of probabilities that that entity was the respondent as I have amended the description of it.  For these reasons the applicant is entitled to the orders sought. 

I will grant a stay of 14 days. 

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of JUDICIAL REGISTRAR MURPHY.

Associate:     KAREN HALSE
Dated:  30 September 1997

Appearing for the Applicant:	MR NEIL CAMPBELL
Applicant’s representative:	ALHMWU
Counsel for the Respondent:	MR P GINNANE
Solicitor for the Respondent:	COMLAW
Date of Hearing:	30 SEPTEMBER 1997
Date of Judgment:	30 SEPTEMBER 1997