Benjamin Barnard v Energy Developments Pty Ltd

[2016] FWC 4207

[2016] FWC 4207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Barnard
v
Energy Developments Pty Ltd
(U2016/5617)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 JUNE 2016

Application for relief from unfair dismissal.

[1] Mr Benjamin Barnard made an application alleging the termination of his employment by Energy Developments Ltd was unfair. EDL objected to the application on the basis that it did not employ Mr Barnard rather he was employed by a labour hire company.

[2] Mr Glen Marshall, the Company Secretary, gave evidence that EDL had changed its name to Energy Developments Pty Ltd and it owns and operates power stations, including a power station at Looma in the West Kimberly region of Western Australia where Mr Barnard performed work. It directly employs permanent workers and sources additional workers from labour hire companies.

[3] At the Looma Power station it had originally used a labour hire company called Brooklyn Group and when it went into liquidation in April 2015 it used Pindan Labour Solutions to source labour. Mr Marshall said that the Looma power station was commissioned in 2006/7 and that Mr Barnard had performed work for them from that time.

[4] Mr Marshall gave evidence that EDL and Brooklyn Group were not related corporations and neither were EDL and Pindan. EDL exhibited its contract with Pindan which was signed by the parties in April 2011.

[5] Mr Marshall gave evidence that EDL paid Pindan for services provided by Mr Barnard. He said that Mr Pindan was an employee first of the Brooklyn Group and then Pindan and he was not an employee of EDL.

[6] Mr Barnard said that EDL had organised him to be engaged by a labour hire company. He said he did not seek employment with either labour hire company. He said he was offered work by the operations manager of EDL but he no longer works there. He received information electronically from Brooklyn Group and subsequently from Pindan but did not meet anyone from either company. He said he responded to electronic communications from both but he did not read the documents provided.

[7] He said that when the Brooklyn Group went into liquidation EDL arranged for Pindan to take over. He gave evidence that he worked under EDL’s direction and he used their tools and equipment and wore EDL’s uniform. He gave evidence that EDL controls the manner in which work is performed and he only worked for EDL. EDL selected his relief operators and organised all of his safety training and courses and paid for his accommodation when he undertook the courses in Broome. EDL provided his uniform, boots and PPE. He used his own vehicle for work and did not charge a kilometre rate as he did not think he was a contractor.

[8] Mr Marshall did not dispute this evidence however he gave evidence that Pindan and Mr Barnard had a high degree of flexibility in terms of when the prescribed tasks and duties relating to the operation and maintenance of power station were performed. There were no set hours; no minimum hours; no set start or finish times; and there was no impediment to Mr Barnard performing other work for Pindan or otherwise. Mr Barnard gave evidence that he did not in fact perform paid work for anyone else.

[9] It is clear from the contract between Pindan and EDL that EDL was responsible for the supervision of work and Pindan was responsible for paying its workers.

[10] Mr Barnard gave evidence that, apart from the initial documentation, the next time he heard from Pindan was when it contacted him to advise him that EDL would no longer permit Pindan to supply Mr Barnard to work at the site.

[11] Mr Barnard did not have any pay records or group certificates which supported his claim that he had been employed directly by EDL and EDL could find no payroll records which would support Mr Barnard’s claim that he had been employed directly by EDL.

[12] Mr Barnard was paid by the labour hire companies who were responsible for paying his worker’s compensation insurance and his superannuation. When Brooklyn Group went into liquidation owing Mr Barnard monies, he did not claim that he was in fact employed by EDL such that they were liable for his entitlements. Further when EDL arranged for him to be engaged by Pindan in 2015 he did not object to the arrangement.

Who was Mr Barnard’s employer?

[13] I am satisfied that Mr Barnard was not an employee of EDL. Labour hire is a common feature of employment in Australia. That Mr Barnard performed all his work for EDL and had done so for a significant period of time does not mean he was its employee. Neither does the fact that EDL provided him with tools, training, uniforms and PPE.

[14] There is nothing in the evidence to suggest that Pindan was merely a paymaster for EDL. It is clear that Pindan charges EDL a margin for providing Mr Barnard’s services. Further, there is no evidence that the engagement of Mr Barnard by either labour hire company was a sham designed to hide the true nature of the employment. It was Marshall’s uncontested evidence that EDL and Pindan are not related corporations. Pindan Labour Solutions is a labour hire business which has operated in the Broome and Kimberly region since 2010. There is no evidence to support a finding that the arrangement between it and EDL was not a genuine arm’s length business arrangement.

[15] Further I am not satisfied that Mr Barnard was ever employed by EDL. Mr Barnard did not provide any evidence to support his claim. This was not a situation where there was a restructure of EDL’s business that caused Mr Barnard to be transferred to a labour hire company.

[16] Mr Barnard’s application for an unfair dismissal remedy is therefore dismissed as EDL was not his employer.

DEPUTY PRESIDENT

Appearances:

B. Barnard on his own behalf.

G. Marshall for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

June 27.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR582106>