Brian Henry v FP Group Pty Ltd and Tooheys Pty Ltd - [2013] FWC 2813

Note: An appeal pursuant to s.604 (C2013/5651) was lodged against this decision - refer to Full Bench decision dated 17 December 2013 [[2013] FWCFB 9605] for result of appeal.

[2013] FWC 2813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Applications for unfair dismissal remedies

Brian Henry & Others
v
FP Group Pty Ltd and Tooheys Pty Ltd
(U2011/15073; U2012/176; U2012/177; U2012/178; U2012/179; U2012/180; U2012/181; U2012/182; U2012/183; U2012/184; U2012/185; U2012/186; U2012/187; U2012/200; U2012/201; U2012/203; U2012/204; U2012/4104; U2012/4341; U2012/4631)

DEPUTY PRESIDENT SAMS

SYDNEY, 31 JULY 2013

Applications for remedies for unfair dismissal - jurisdictional objections - applications filed ‘out of time’ - identity of true employer - labour hire arrangements - joint employment - ‘control’ tests - objective evidence - contractual terms - intentions of the parties - whole relationship to be considered - unremarkable labour hire arrangement - labour hire company true employer of applicants - unnecessary to consider ‘out of time’ applications - applications against Tooheys dismissed - applications against FP remitted for further programming.

INTRODUCTION

[1] This decision will determine two complex jurisdictional objections raised by FP Group Pty Ltd (‘FP’ or the ‘first respondent’) and Tooheys Pty Ltd (‘Tooheys’ or the ‘second respondent’) in respect to a number of unfair dismissal applications, filed pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). At various points in evidence and other documents tendered in the proceedings, FP Group Pty Ltd is alternatively referred to as FP, FP Group or FPG. For convenience, hereinafter, I shall refer to the first respondent as FP, noting that separate reference will also be made to the FP Group of Companies. The applications for a remedy for unfair dismissal were lodged by:

Mr Brian Henry;

Mr David Hulbert;

Mr Graeme Robinson;

Mr George Wilczewski;

Mr Andrew Sands;

Mr Ian Luke;

Mr David Blackley;

Mr Dennis Llagas;

Mr Bruce Hancock; and

Mr Mark Coombes (collectively, the ‘applicants’).

[2] All the applicants have filed two applications for unfair dismissal remedies - one naming Tooheys as the respondent employer and another naming FP as the respondent employer. Unsurprisingly, each respondent claims that the other was the true employer of the applicants. Essentially, this is the issue to be determined by this decision. It is apparent from the applications that, except for Mr Luke, the other nine applicants claim they were either dismissed by Tooheys on 14 October 2011 and filed their applications naming Tooheys as the respondent some three months later, or they were dismissed by FP (including Mr Luke) on 28 January 2012, and the applications naming FP were filed a few days thereafter.

[3] The applicants had worked at Tooheys’ Brewery in Lidcombe, New South Wales, in most cases, for many years (between five and twelve years). For over 20 years, Tooheys had a continuous, renewable labour hire contract with FP or its predecessor entities. Its most recent manifestation was the 2002 Services Agreement. The contract evolved over time to include the provision of electrical, production and mechanical labour for scheduled and unscheduled maintenance, repair and production work at the Tooheys site at Lidcombe. In return, FP was paid an annual service fee by Tooheys. For the year ending 30 September 2011, that fee was around $8 million.

[4] The genesis of this arrangement arose from a most extraordinary set of circumstances. It was the desire of the then Tooheys’ senior management (none of whom remain employed by Tooheys) to ‘break the grip’ of the respective Unions on site in order to end their perceived hold on maintaining outmoded and restrictive work practices, which Tooheys believed were impediments to improved productivity and efficiency. The lengths Tooheys went to, and the costs it initially expended to achieve its objective were truly breathtaking; suffice to observe that, by any measure, it was a spectacular and unprecedented success. I shall return to the conception of the arrangements later.

[5] The long and mutually beneficial arrangement began to come unstuck around mid 2011 when a contractual dispute with FP seemingly prompted Tooheys to seek tenders for the ongoing supply of all its contract labour requirements. Ultimately, the contract was won by Skilled Engineering. About the same time, there was an overall restructure announced of Tooheys’ operations resulting in 27 roles no longer being required. However, in the process of the restructure of the engineering department, the total number of FP’s contracted employees was reduced immediately. This included nine of the applicants in these proceedings (except for Mr Luke), who were advised on 14 October 2011, that their services from that day, were no longer required at the Tooheys site. While not accepting that the applicants were its employees, Tooheys made an ex gratia payment of two weeks pay to each applicant.

[6] On 24 October 2011, as a result of its failed tender, Tooheys notified FP that its services would no longer be required from 28 January 2012. All of FP’s personnel whose services with Tooheys came to an end on 28 January 2012, except for the nine applicants and Mr Ian Luke (also an applicant) were re-engaged by Skilled Engineering under its new contractual arrangements with Tooheys. Most, if not all of the applicants, continued to be paid by FP up to the termination of the labour supply contract on 28 January 2012, and some of them were transferred to other of FP’s clients during, and after the period 14 October 2011 and 28 January 2012. Nevertheless, the applicants claim that they have not been paid their accrued outstanding entitlements, including redundancy pay, when their employment with FP came to an end.

[7] As earlier mentioned, all of the applicants have filed two unfair dismissal applications against both respondents. On the face of the applications, it will be seen that if the true employer is found to be FP and the terminations of employment were on or about 28 January 2012, then the applications have all been filed within the then statutory time period of 14 days as required by s394(2) of the Act. Conversely, if Tooheys is found to be the true employer and their terminations of employment (save for Mr Luke’s) were 14 October 2011, then their applications were filed well outside the statutory time period by several months. In those circumstances, considerations will arise as to whether ‘exceptional circumstances’ exist, under s 394(3) of the Act, for the Commission’s discretion to be exercised to allow for the late filing of the applications. Tooheys strongly resists the extensions of time been granted, notwithstanding its primary position, that it was never the employer of the applicants. Counsel for Tooheys suggested that I should determine the ‘out of time’ issue first, because if no jurisdiction exists under s 394(2) of the Act, then it would be unnecessary for the Commission to determine the question of the identity of the true employer. While this is an attractive way forward, it would still leave Mr Luke’s application against Tooheys to have been filed within time, if it is accepted that his employment came to an end when the services contract ended. Therefore, the identity of the true employer would still need to be determined in his case.

[8] As a matter of practical reality then, I consider the question of the true employer should be decided first. As I have just observed, if FP is found to be the true employer, no ‘out of time’ issue arises. However, if Tooheys is found to be the true employer ‘out of time’ considerations arise, except for Mr Luke’s application.

[9] To complete the jurisdictional background to this decision, presumably both respondents rely on whether the applicants were persons protected from unfair dismissal - a jurisdictional prerequisite under s 396(b) of the Act. It is expressed as follows:

‘396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

...

(b) whether the person was protected from unfair dismissal;’

[10] As the argument goes, a person cannot be protected from unfair dismissal unless the person has been dismissed (s 385(a) of the Act). That section is expressed as follows:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.’

[11] A person can only be dismissed according to the definition of dismissal in s 386(1) of the Act which is as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[12] Thus, it is obvious that the meaning of ‘dismissed’ is predicated on establishing the identity of the employer who initiated the termination of the employment.

[13] There have been several attempts at conciliating these matters. Unfortunately, these efforts have proved to be unsuccessful. In addition, there were earlier related proceedings, filed under s120(2) of the Act, by FP, which sought to have Tooheys named as the employer of the applicants in order to establish that redundancy benefits payable to the applicants would be paid by Tooheys. In a decision of 20 March 2012 - FP Group v Tooheys Ltd [2012 FWA 2133] - I dismissed the application as being beyond the jurisdiction of Fair Work Australia (as it then was) and found that s120 of the Act was an inappropriate vehicle for establishing the true identity of the employer. I note that the present applications were filed almost 18 months ago. It is to be regretted that the hearing of this jurisdictional issue has taken some 15 days, involving numerous witnesses and voluminous evidentiary material. Further delays were attributed to finding common agreed dates for the senior legal teams of the three parties in the proceedings. Mr J Phillips SC appeared for the applicants. Mr F Parry SC with Mr Shariff of Counsel appeared for Tooheys and Mr M Seck of Counsel appeared for FP.

THE EVIDENCE

Nature of the Tooheys business

[14] The Tooheys Brewery, owned by Lion, produces approximately 270 million litres of beer each year. The Lidcombe site has approximately 160 permanent staff and a further 50 contractors and casual staff, depending on seasonality and peak demands. The site is also occupied by approximately 100 BevChain employees who are responsible for distribution and warehousing on the Tooheys site.

[15] The brewery produces some of Australia’s major beer brands, including Tooheys New, Hahn Super Dry, XXX Gold and Tooheys Extra Dry to name a few, as well as premium international brands under license, including Heineken, Becks and Stella Artois. The international brands are distributed nationally, while local brands supply New South Wales and Victoria.

[16] The site’s operating budget is approximately $200 million, with capital expenditure projects worth over $60 million currently underway. The Tooheys Brewery is the largest site within the group and generates over 40% of the sales for the Australian beer business. There are two distinct departments on the site:

(a) Brewing: this consists of a number of processes that include the brewhouse where malt, barley, hops and water are mashed in to produce wort. The beer is cooled and yeast is added to start the fermentation process where the wort is converted to alcohol and the flavour of the beer starts to develop. The next stage is maturation. This is a cellaring process where the flavour of the beer is further developed and finally the beer is filtered to form bright beer with the injection of carbon dioxide which was captured during the fermentation process.

(b) Packaging: the bright beer (being beer in which yeast is no longer suspended) is then sent to the packaging section where the beer is put into various container formats, including glass, cans and kegs. The packaging occurs down various packaging lines, which include high speed fillers, labellers, shrinkwrappers, packers and palletisers. The finished product is warehoused and picked to fulfil customer orders.

[17] Both departments are supported by the Engineering and Utilities Group, Technical Quality and Manufacturing Excellence.

[18] At its peak, FP supplied 120 workers to the Lidcombe site, consisting of Core Trades and Non-Core Trades. Core Trades are the maintenance trades that cater for continuous production in both the Brewing and Packaging departments, 8 hours, 5 day rotating shifts, or 12 hours 7 day rotating roster, dependent upon Tooheys’ requirements. An electrician and fitter are supplied to each Production Team. Non Core Trades are the maintenance trades that cater for the Planned and Preventative Maintenance in both the Brewing and Packaging departments. Non-Core Trades also cover the Core trades in terms of sick or annual leave and are groomed for potential Core positions.

[19] The following persons provided written and/or oral evidence in the proceedings:

a) The applicants

Mr David Hulbert - Core Trade, FP;

Mr Brian Henry - Core Trade, FP;

Mr Graeme Robinson - Non-core trade, FP;

Mr George Wilczewski - Core Trade, FP;

Mr Andrew Sands, Site Maintenance Supervisor, FP;

Mr Ian Luke - Brewery Technician, FP;

Mr David Blackley; Core Trade, FP;

Mr Dennis Llagas; Core Trade Fitter and Machinist;

Mr Bruce Hancock - Non-core Trade, FP; and

Mr Mark Coombes - Core Trade FP;

b) For Tooheys

Mr Marcus Anderson - Bottle Hall Manager;

Mr John Barrowman - Team Leader, Maintenance;

Mr Chris King - Packaging Development Manager;

Mr Chris Speck - Maintenance Coordinator, FP;

Mr Stephen Lewis - Logistics and Supply Director/Group Procurement Director, Lion;

Mr James Morley - Workplace Relations Director;

Mr Nicholas Ogilvie, Solicitor for Tooheys Pty Ltd;

Mr Julian Scott, Tooheys - Manufacturing Excellence Director, Lion;

Mr Luke Sawyer, Tooheys - Group Engineering Director, Lion Group;

Ms Katharine Stevens - Operations Capability Leader; and

Mr Mark Toomey - Operations Director.

c) For FP

Mr Gordon Moston - Director of Proden Pty Ltd;

Mr Trevor Gorman - Director of FP Group Pty Ltd and Proden Pty Ltd;

Mr Lodo Porretta - Director of FP Group Pty Ltd and Proden Pty Ltd;

Mr Byron Smith - General Manager; and

Ms Susan Budwee - FP Labour Hire Coordinator, Proden Pty Ltd.

For the applicants

[20] In order to minimise repetition, I shall structure the applicants’ written and oral evidence under relevant headings.

Recruitment and selection

[21] Mr Sands annexed a copy of his resumé to his statement. He said that he had started working as a Production Technician at Pepsi in July 1991. Pepsi was owned by Lion-Nathan at that time. He was subsequently promoted to Production Team Leader. It was around this time that he had his first contact with the FP Group of Companies as he managed and supervised workers from FP which were supplied to Pepsi. This was how he had first met Mr Moston. The Pepsi franchise was subsequently bought out by Cadbury/Schweppes in 1999. He was appointed as a Plant Analyst, meaning that he managed the contract between FP and Cadbury/Schweppes. After he was made redundant in 2003, he had been contacted by Mr Moston about three months later in relation to possible work at Tooheys through FP. He was subsequently interviewed in November 2003 by Mr Luke Sawyer and Mr Peter David (Brewing Manager, Tooheys). Mr Porretta was also present. He was approved to begin work as Site Maintenance Manager. Mr Sands said he may have received a letter of offer, but he no longer had it in his records.

[22] In cross examination by Tooheys, Mr Sands agreed he knew that Mr Moston worked for a labour hire company. He knew what the type of business a labour hire company was when he was contacted by Mr Moston in 2003. He had been given a brief explanation by Mr Moston of what the role of Site Maintenance Manager involved. He was told about pay, hours of work, but not the bonus structure. He had said he was interested and was told that an interview would be organised with Mr Porretta, whom he had dealt with in his previous job at Pepsi. He agreed that he understood that it was FP that had recommended him and that he would be working at the Tooheys site, subject to Tooheys’ approval. He understood that his employment would be with FP and was under ‘no illusion’ that Tooheys would not be employing him. There had been some discussion between Mr Porretta, Mr Sawyer and Mr David about his rate of pay and there was also discussion of the bonus structure. He was aware that there was a labour hire agreement between FP and Tooheys, saying that he ‘assumed it was the same agreement as proposed at Pepsi.’

[23] Mr Sands agreed that he had told Mr Porretta of his intention to accept the position after his interview and that he had signed a letter headed, GTG Investments Pty Ltd, confirming his acceptance of the position of Maintenance Manager, effective 10 November 2003. He also agreed that he had signed a GTG Investments branded document marked ‘Employment Agreement’ on 17 November 2003 at the FP office in Glendenning. He had read the document and raised a concern as to whether a particular clause would prevent him running his martial arts business. When Mr Gorman and Mr Porretta told him that this was not an issue, he signed the Agreement.

[24] Mr Sands said that in his role as FP Site Maintenance Supervisor, he had duties related to recruitment, including advertising, interviewing and checking the references of new candidates for employment. He explained that Tooheys had ‘strong guidelines’ in relation to recruitment and described the process of recruitment as a ‘collaborative process’ between himself and Tooheys. These guidelines required external advertising, reference checking and Saville and Holdsworth ability testing (testing on numerical computation, mechanical comprehension and technical understanding). Ms Natalie Radburn (Tooheys HR) had also directed that a fourth test be carried out in fault diagnosis.

[25] The process would commence during the weekly meetings with Tooheys, if gaps were identified which Tooheys required to be filled. Mr Sands would identify whether the vacant position could be filled with existing Trades workers after discussion with the relevant Tooheys Engineer. He would then draft an advertisement and sent it to the FP office, which would cause it to be published. Job applications were directed to him. He made a short list after contacting each of the applicants by telephone and asking them some basic questions. He referred to this phone call as a ‘first interview’. The relevant Tooheys Engineer would review the shortlist and ‘flag’ those who should proceed to aptitude testing. This would be conducted at the FP office. An interview (the ‘second interview’) would be booked with the candidate, Mr Sands and the Tooheys Engineer. Mr Sands said that he asked most of the questions in this interview. His questions were based on a template which had been prepared by him and approved by Tooheys Engineers. To be successful, candidates had to have been chosen by Tooheys Engineers and the Engineer would inform Mr Sands of which candidate was successful at the end of the interview. Once an applicant had been deemed successful, Mr Sands would organise FP induction training and Tooheys’ induction training for the new worker. He would also provide two red Tooheys’ padlocks for use in Tooheys Lock-out/Tag-out procedures.

[26] Mr Sands emphasised that where someone was appointed from a Non Core position to a Core position, this was subject to the relevant Engineers’ approval. He noted that there were occasions where he had been approached by Tooheys’ Engineers about such changes. In cross examination, Mr Sands agreed that he was aware of, and understood that the appendices to the 2002 Services Agreement set out the competency and skills requirements of Trades workers. It required that these be backed up by a resumé and reference documentation to the satisfaction of Tooheys’ Team Leaders and Engineers.

[27] Mr Sands also agreed that FP would place general advertisements in order to build up a pool of workers that may be needed, especially coming into peak periods. They would be put through the testing regimes, but might not be placed on the Tooheys site for a period. Some workers might be used by Omni Engineering and he would occasionally use people from Omni to cover leave or training at Tooheys. Mr Sands was shown the Employment Agreement for Mr Wilczewski. He agreed that this was indicative of the document that would be given to Trades workers who were to be given permanent positions. In cross examination, Mr Sands conceded that when looking for people to work at the Tooheys site, the advertising would usually refer to work at a brewery, without naming Tooheys directly.

[28] Also annexed to Mr Sands’ statement was email correspondence between himself and Mr Hayhow (Packaging Maintenance Leader, Tooheys) which related to the replacement of a FP Core Trades Worker. Mr Sands had said in response to a query from Mr Hayhow:

‘Hi John,

FP Group provides your Core Trades under the observation of a pre-existing contractual arrangement. We are more than happy to provide an additional trade for a contracted period of 12 months if you so desire. This arrangement would allow Tooheys to free up your own resources and utilise our recruiting resources to provide the candidate that you are looking for. At the end of the 12 month arrangement, FP Group can then manage the end point of the individuals circumstances on your behalf according to your business needs.

To deliver the candidate that you require, we will need to better understand the scope of the position. Will it include “pay for performance” measures similar to the existing Core Trades? Will the role report directly to yourself, or would you like FP Group to manage the “One on One’s” on your behalf based on your feedback of the individual? Naturally we will cater for the individuals leave and training requirements. We are happy to manage the individual so that you can concentrate on your core role and expected outcomes.’

[29] When Mr Sands identified a temporary replacement to fill the role, Mr Hayhow responded with a concern that FP currently only had one candidate. He asked if there were other persons within FP who could be considered. Mr Sands replied with an outline of the recruitment process as follows:

‘Our recruitment process generally works as follows:

A vacancy is identified

An advertisement is placed

Potential recruits CVs are reviewed and a shortlist is generated

The short list is reviewed by both the Site Supervisor and Engineering/ Relevant Manager

A final list of potential candidates is produced

Interviews are organised and conducted with the relevant Dept Supervisors/ Managers and the Site Manager

SHL aptitude testing and induction processes are applied

Available work is allocated and a trial conducted of the prospective employee.’

[30] Mr Sands explained that they had other candidates that would be suitable for the temporary position and concluded by noting that:

‘We can advertise on your behalf as a recruitment service for the contract role, our service fees for this activity can be found in our standard terms of sale, or manage the individual in the contracted role (same as the core trades). Should Tooheys wish to recruit for the permanent role from a temporary position FP have provided, the recruitment services fees will apply.’

[31] Mr Sands drew a distinction, between Core Trades and Non Core Trades. While Core Trades workers were directly attached to production teams in the Packaging and Brewing departments and rotated with their teams shift roster, Non Core Trades workers were generally day shift Trades that worked on planned maintenance or corrective maintenance and who were retained on a permanent and casual basis. He noted that previously there had been two Non Core Trades working in Racking (an electrician and a fitter). However, they had been removed by Mr Speck in 2004. He also said that there were four Maintenance Coordinators who were classified as Non Core Trades. Non Core Trades were also to provide coverage for leave, absences and training.

[32] In cross examination by FP, Mr Sands agreed with the proposition that clause 5.2(a) of the 2002 Services Agreement, which set out that FP was to ‘promptly provide Personnel to meet Tooheys’ requirements from time to time’ related to recruitment. However, this recruitment process ultimately required Tooheys’ approval.

[33] In his statement, Mr Coombes said that he had contacted FP in or around August 1999 after being informed by a friend of casual work being available with Tooheys. He was asked to attend FP’s office to sit a fitter/machinist test. He was later contacted by FP and told to begin working at the Lidcombe site. He was initially engaged as a casual employee, but began working permanently as a Core Fitter on or about January 2000. Mr Coombes said that on his first arrival at the Lidcombe site, he met Mr Doug Fuller, the FP Maintenance Supervisor at that time. Mr Fuller arranged for him to undertake the Tooheys’ induction. Mr Coombes said that when he began working as a Core Fitter, he understood that his name had been put forward by Mr Craig Higgins, a FP Maintenance Coordinator, although he thought that approval would have come from Tooheys Management and Engineers.

[34] Mr Coombes was shown a document in cross examination by Tooheys, that was said to be a record of his initial interview. He agreed it was probable that he was interviewed by Doug Fuller on behalf of FP, on 9 July 1999 and that it was Mr Fuller who had told him when he was going to start working for Tooheys and what he was to be paid. Mr Coombes could not remember having seen a FP branded letter confirming his permanent appointment to the Fitter’s position on 25 October 1999. He conceded that this was when he was made permanent and had occurred after discussions with Mr Fuller and Mr Higgins. Mr Coombes agreed that his signature was on a document marked ‘Employment Agreement - Particulars of Terms of Employment’, which began: ‘This agreement confirms the employment by F.P. Group Pty Ltd of Mark Coombes. Your terms and conditions of employment are as follows.’ He accepted that he had not raised any concerns with Mr Porretta or Mr Gorman when he signed this document. However, in cross examination by FP, Mr Coombes said he had only flicked through this document at the time.

[35] In further cross-examination by FP, Mr Coombes agreed that in 1999 he had ticked ‘Fitter’, rather than ‘Labour Hire’ on the ‘Employee Details Form’ as he understood he was going to work at Tooheys as a Fitter. He said that at the time he was interviewed, he was looking for a long term position with Tooheys with a view to moving into a supervisor’s job within five years. This was reflected in the record of interview. He also said that he had received feedback from Craig Higgins and Team Leaders employed by Tooheys, prior to being made a permanent Fitter, that they wanted him to go ‘on the line’. He understood that they had approved his appointment. He believed that he had been engaged by Tooheys at this stage. Mr Coombes agreed that he had filled out a FP branded document marked ‘Private and Confidential - Employee Details’ on 2 August 1999. He also agreed that a document provided by FP marked ‘Application form for casual employees only’ was filled out by him.

[36] It was Mr Hancock’s evidence that he had spoken to Mr Sands by telephone after finding a job advertised in a newspaper. He had subsequently sent his resume to him. He was made an offer by Mr Sands and Mr Paul Eason for a ‘non-core position working at Tooheys on the AB 4 maintenance workshop.’ In cross examination, he said he understood at this time that he would be employed by FP. No Tooheys officer or agent was involved at this stage.

[37] Mr Hulbert said that he had responded to a newspaper advertisement in October 2001 for a casual day shift maintenance position with FP at a brewery in Western Sydney. He spoke to FP Site Supervisor, Mr Rodney Paulson and subsequently met him at the Lidcombe brewery. They had a brief meeting, at the end of which Mr Paulson invited him to attend the site the following Monday. He began working as a casual maintenance fitter on 22 October 2001. In December 2001, he was approached by Mr Paulson, who said that Mr Luke Sawyer, Tooheys Factory Manager, wanted him to apply for a Core Tradesperson position. He did so and attended an interview with Mr Sawyer. He was offered the position of Core Fitter during this interview.

[38] Mr Hulbert attached a FP-branded letter confirming his employment with FP as a Core Fitter. It was signed by Mr Stig Falster, FP’s Site Supervisor at the time. At some time in early 2004, he was approached by Mr Falster, who said words to the effect of ‘Tooheys want you to apply for a core role down in racking.’ He was made aware by Mr Falster that the job was his, and he subsequently met with Mr Sean Symons, Tooheys Team Leader/Engineer, Racking. He commenced as a Racking Core Fitter after the meeting and stayed in this position up until October 2011. In cross examination by Tooheys, Mr Hulbert agreed that he had been told during the discussion with Mr Paulson that he would be employed by FP. He had known that he would be employed by FP at the time that he began working as a casual maintenance fitter. He agreed that he had signed a FP-branded document headed ‘NEW EMPLOYEE DETAILS (Private & Confidential).’ He accepted that it was possible that when he had had discussions with Mr Falster in relation to the Core Fitter role, he ‘must have’ discussed pay rates, hours and performance incentives with him. He agreed that he had signed an employment agreement confirming the employment between himself and FP. There was nothing surprising in the employment agreement referring to Mr Falster as his manager.

[39] It was Mr Llagas’ evidence that he answered a newspaper advertisement for a Fitter/Machinist to work in the Auburn area of Sydney. He spoke to Mr Falster, who arranged for him to meet Mr Rodney Paulson. He was subsequently interviewed by Mr Falster and Mr Paulson, although he understood that a Tooheys manager was also expected to attend the interview, but had been unable to do so. At the interview’s conclusion, he was told that his resumé would be forwarded to Tooheys Management for their approval. A few hours afterwards, he was informed that his application had been successful and that he was to start work on the following Monday. He could not recall ever having received a contract of employment or letter of offer, although he had signed some documents which related to Tooheys’ policies.

[40] In cross examination by Tooheys, Mr Llagas ackonweledged that he had signed a document which ‘confirms the employment by FP Group of Dennis Llagas’. He agreed that this was what he thought was the position at the time. He also agreed that it required him to report to both the client supervisor and Mr Sands. In cross examination by FP, Mr Llagas said that he had responded to an advertisement which referred to work at the specific brewery site. He had had previous experience of working for labour hire companies, where he would deployed to different sites. However, this was not his experience while working at the Tooheys site.

[41] Mr Henry had been a self-employed electrician prior to commencing work at Tooheys in 2006. However, he had previously worked for Tooheys from 1978. He had been told in November 1991 that he could be made redundant and then continue working at Tooheys for Feyman. However, if he did not take up this offer, he would be made redundant and would cease working at Tooheys. He recalled other electrical tradespersons being offered this arrangement as well. He said that he ‘left work on the Friday as a Tooheys employee and returned to work on the Monday on the payroll of Feyman and supposedly as a Feyman employee.’ However, he continued to wear a Tooheys’ uniform and perform the same duties, although he was now paid by Feyman and was required to apply to it for any leave. He noted that he was paid in the same manner on the same day; only the name on his payslip changed. Mr Henry resigned in 1994 to start his own business.

[42] Mr Henry recommenced working at Tooheys again after he saw an advertisement in a newspaper in or around May 2006 for an electrician on a high speed packaging line. After taking a competency test with FP, he met with Mr Sands and Mr Owen Maher (Tooheys’ Brewing Engineer) at the Tooheys site to be interviewed. He was asked where he saw himself in five years and he replied that he expected to be still working at Tooheys. He was subsequently told that he had been successful and started working casually at Tooheys in the packaging section on a Monday in June 2006. He worked as a Maintenance Electrician on the bottling line from August 2006. At some time in early 2008, he began working in Brewing as a Maintenance Electrician on the basis of rotating shifts. At some time in the second half of 2008, Mr Henry said that he was made a ‘Tooheys core electrician/tradesperson’, which he understood to mean that he had a permanent role with associated benefits of annual and personal leave. This had been after asking Mr Sands early in 2008 when this would occur, who replied that it was up to Mr Barrowman (Tooheys Team Leader). He understood that all employees, including Tooheys employees were initially employed on a casual basis, in order for them to be assessed. Permanent workers would be offered Core positions through FP if their assessment was positive.

[43] Mr Henry conceded in cross examination by Tooheys, that he had not approached Tooheys’ management or staff in relation to his appointment to a permanent role. Rather, he had approached Mr Sands in his capacity as Site Manager for FP. He agreed that his signed contract of employment was a FP document which referred to him being employed by FP. He conceded that he would not have signed it, if he had thought that the arrangement presented within it, was a ‘sham’. He agreed that this contract referred to his direction by the client supervisor and Mr Sands.

[44] In cross-examination by FP, Mr Henry agreed that prior to 1991, he had been a member of the ETU and that the Tooheys site operated on a ‘no ticket, no work’ basis. Mr Gorman was the delegate at that time. He agreed that, at the time, a number of practices existed at the site, including minimum personnel levels, a mandatory overtime roster, payment of taxi fares where employees were called back to work for repairs and bans on staff members carrying out electrical tasks. He accepted that the ETU exercised a high degree of control during this period and that productivity suffered as a result of these policies. Mr Henry understood that when he was retrenched and reemployed by Feyman, he was to provide the same services to Tooheys, but without the restrictive work practices. The point of this arrangement was to circumvent these practices. He could not recall the Australian Tax Office (ATO) ruling that there was no genuine redundancy in this arrangement. On being shown his signed contract of employment with Proden of November 1991, he agreed that he had received a redundancy payment in the amount of $57,723.19. This had been subject to ‘beneficial’ tax arrangements and to ensure that he was indemnified in the event of a tax liability being incurred should this arrangement not be found to be genuine by the ATO.

[45] In further evidence, Mr Henry said that he was given a contract of employment by FP in 2006. However, he no longer had a copy. Nevertheless, he remembered that the contract discussed his hours of work, pay rate and standards of behaviour. He agreed in cross examination by Tooheys, that he himself had hired contractors and subscontractors in the context of running his own business. He had understood that the advertisement he saw in 2006 was for a job with FP to supply labour to Tooheys. However, he was not aware that FP was related to Feyman until later.

[46] Mr Luke said that he had commenced working for FP in 1996 and that he had worked for PepsiCo and Colgate at FP’s direction. In or around August 2001, he was asked if he was available to work at Tooheys. After induction, he began working at Tooheys as a casual labourer in or around 1 September 2001. He also said that when he was asked if he would be available to work at Tooheys, there was no discussion of hours or pay. He was just happy to get work and thought it was a job at Tooheys for FP. He was moved around the factory every three months or so. In cross examination by Tooheys, Mr Luke agreed that he had received from FP a document marked ‘Statement of Earnings’ which referred to his casual employment with FP in August 1998. It was to be used for the purpose of getting a loan. In cross examination by FP, Mr Luke said that the Statement of Earnings was for the purpose of getting Centrelink benefits. Accordingly, he believed it was the amount of money shown on the Statement, rather than the identity of the employer, which was the important aspect of the document.

[47] Mr Hancock agreed that a FP branded document marked ‘New Employee Details (Private & Confidential)’ was filled out and signed by him immediately before he began working at Tooheys.

[48] It was Mr Robinson’s evidence that he had been referred to Ms Susan Budwee in her capacity as Labour Hire Organiser for FP by a friend who already worked at Tooheys for FP (Mr Brad Timmins). Mr Timmins had asked Mr Robinson to accompany him to the Tooheys site. On arrival, Mr Robinson reported to a Team Leader and was told to work in the repackaging hall. He gave his bank details to Ms Budwee a couple of days later. He never received a contract of employment, letter of offer or any document relating to his terms and conditions of employment from Tooheys or FP. At this time, he worked as a casual Production Worker. He expected to work at Tooheys on this basis for about three months or so. After a few days, he had asked other workers about getting work as a tradesperson. He subsequently spoke to Mr Noonan (FP Maintenance Coordinator at that time), who organised to have him start work as a Maintenance Fitter in the bottling hall. About six months after beginning work at Tooheys, Mr Sands asked him if he would be interested in a permanent role. As Mr Robinson perceived that taking up a permanent role would mean a significant cut in pay, he declined. However, after this time, he said that he asked Mr Sands if he could be made permanent approximately once every six months. He was told that this required Tooheys’ approval and this was not forthcoming.

[49] In cross examination by Tooheys, Mr Robinson said he had previously worked with Mr Noonan at an organisation called Alcan. He also said that when he provided his banking details to Ms Budwee, he presumed she was working for the labour hire company. When he had first worked the couple of days on production at Tooheys, he was not sure what company he was working for. He thought it was FP or Tooheys. He did not know that Proden existed. However, he had understood that FP was providing labour hire services to Tooheys. Mr Robinson said that at the time Mr Sands had offered him a permanent role, he had known that Mr Sands worked for FP. However, he was not clear as to whether the permanent role was with Tooheys or FP.

[50] Mr Blackley said that he had been briefly unemployed after working in Queensland, when his son, Andrew, suggested he could work ‘a few days’ at Tooheys. Andrew was a FP Line Cover Core Electrician. He contacted Mr Falster and an interview was arranged at the Tooheys site near the end of October 2002. Mr Blackley was told at the end of the interview to return to the site and speak to Paul Eason, FP Maintenance Coordinator. He understood that he had been successful in obtaining casual work. He did not remember filling out any paperwork at this time. Heowever, someone from FP must have asked for his banking details. In or around June 2003, Mr Falster had told him that he would have to become a permanent employee, as he was under pressure to make everybody permanent. In cross examination by Tooheys, Mr Blackley said that he knew that the job his son had told him of, was with FP to supply labour to Tooheys. He agreed he had signed a FP branded document marked ‘New Employee Details’.

[51] Mr Wilczewski had previously worked for Feyman at Tooheys between 1993 and 1995 as a casual electrician in the Packaging Department. Some time in 2004, he had contacted FP to see if they had any work available. He worked in a number of roles at FP’s direction before FP asked him to meet with Mr Sands as well as the Packaging Manager/Engineer (whose name he could not remember). Mr Sands subsequently contacted him to say that he had the job at Tooheys. He thought that he had received a letter from FP confirming his appointment at Tooheys, but did not have a copy. He initially worked as a casual Shift Electrician in packaging until his probationary period expired. Mr Sands offered him the opportunity to take up a job as a Core Shift Electrician. Mr Wilczewski agreed, on condition that he be made permanent. Mr Sands said he would need to speak to the Brewery Engineer. He later met with Mr Sands, Mr Fred Sadie (Brewery Engineer) and Mr Bob Kirkie (Maintenance Engineer) and was told by Mr Sands that he had the permanent job in the brewery.

[52] In cross examination by Tooheys, Mr Wilczewski reaffirmed that he had worked at the Tooheys site between 1993 and 1995 for Feyman. In 2004, he had contacted an Engineer from Omni to inquire about work. Before that, he was still completing a contract with the Merchant Navy. Mr Wilczewski understood that Mr Sands was a Site Manager for FP when he attended the interview with him. He also understood, on signing the FP branded ‘Employee Details’ form, that he was applying for work with FP. He had signed a contract of employment on 5 May 2005 which was expressed to confirm his employment with FP. He understood that FP was his employer at this time. In cross examination by FP, Mr Wilczewski agreed that the document he received marked ‘Employee Details’ was quite different to the Articles of Agreement that he received while working in the Merchant Navy. He noted that working in this sector in Poland, he looked for work through a Polish labour hire company, but then signed a contract with the owner of the ship. In that instance, the labour hire company would receive a one off payment for supplying the employee.

Issuing of directions and reporting lines

[53] Mr Sands worked from his own office in Tooheys Bottle Hall 2. Stationery and other resources were supplied by Tooheys. On commencement, he reported to Mr Paul Horn, Packaging Engineer and Mr Fred Sadie, Brewing Engineer. They would engage in a weekly ‘maintenance meeting’, during which they discussed site issues and planning for the week. The minutes of these meetings were stored on Tooheys’ servers. In cross examination by Tooheys, Mr Sands agreed that the 2002 Services Agreement set out at cl 12.1 that FP Site Supervisors were to liaise with Tooheys personnel in relation to day to day operations and that he acted in this capacity.

[54] Mr Sands described his duties as ‘mainly a Human Resources role’ and said that the elements of his role were threefold. First, he was responsible for the supply of trades at the Tooheys site in discrete areas, being production coverage, equipment maintenance and mechanical improvement. He stressed that FP workers were approved by Tooheys. Second, he delivered feedback from Tooheys’ Engineers and Team Leaders to FP workers. Third, he was responsible for the ‘upskilling’ of the FP workers in accordance with the wishes of Tooheys’ Management.

[55] Mr Sands emphasised that he did not issue instructions as to when or how work was to be performed. Non Core Trades workers received their instructions from Maintenance Coordinators, who received their instructions from the relevant Tooheys Engineer. Supervision was undertaken by the Maintenance Coordinator or the Team Leader. He added that he was not trades qualified. He denied an assertion that he was only at work ‘3-4 days per week.’ Rather, he was on site five days a week and, aside from when he was on annual leave, contactable 24 hours a day, 7 days a week, 365 days a year. He reported to Tooheys Engineers on a day to day basis and to Mr Smith in relation to issues relevant to FP.

[56] In cross examination by Tooheys, Mr Sands said that he was in regular contact with Mr Smith and he often copied him in on emails. He agreed that he kept him appraised of everything he did. This was appropriate as Mr Smith was the General Manager. They had weekly meetings when Mr Smith came out to the Tooheys site. Mr Sands agreed in cross examination by Tooheys that the 2002 Services Agreement also set out that the role of Maintenance Coordinators was to ‘supervise, instruct and work with the preventative maintenance people’, but that they were to be directed day to day by the Tooheys Engineer. He agreed that the description of the position of Maintenance Supervisor under the 2002 Services Agreement was largely accurate in describing his role, with the caveat that he did not have an engineering background. It read as follows:

‘MAINTENANCE SUPERVISOR

The Maintenance Supervisor will be from an engineering background (trades or professional) with specialist skills and experience, working weekday and weekend hours, based on a 43 hour annualised week.

Anticipated requirements from October 2001 to September 2002 inclusive for one full time position on the Tooheys site.

The Maintenance Supervisor will be engaged full time to support the performance management & on the job performance of all Engineering Trades on site.

Monthly one on one’s with Core Maintenance trades people.

Training & Development plans with all trades people.

Rostering of trades people.

The Maintenance Supervisor will have an annual bonus target and payment, which will be advised from tim to time, which will support the business needs of Tooheys.

The Maintenance Supervisor will not be restricted in the performance of their role with administrative duties.’

[57] Mr Sands said that he regarded himself as part of Management of FP, although he reported to Mr Smith. He agreed that it was likely that the other applicants would have perceived him in that way. He said that if there were any issues with the 2002 Services Agreement, he would escalate the matter to Mr Smith for him to deal with.

[58] Mr Sands said that the Non Core Maintenance Coordinators reported to Tooheys Department/Line Engineers. He would conduct a weekly meeting with all of the Maintenance Coordinators. The Coordinators would also have ‘weekly and daily’ meetings with the Area Engineer so as to organise preventative and corrective maintenance and project works. They would liaise with the relevant Engineers in relation to area budgets, resourcing and workshop management. They would also sign off on various work permits with Tooheys and other labour hire groups (related to FP and otherwise) and other external contractors. They would also contact equipment manufacturers and suppliers for parts, materials and sometimes, labour. Mr Sands said that Maintenance Coordinators ‘had authority from Tooheys’ to create work and purchasing orders. He noted that on weekends, the Maintenance Coordinator would be the sole Supervisor on site and would be managing up to thirty Trades workers.

[59] Mr Sands stressed that he required authorisation from Tooheys for ‘everything’ and gave examples of pay increases, skill allowance payments, additional overtime and the hiring and termination of FP tradespersons.

[60] In cross examination by FP, Mr Sands agreed that he saw his role as Site Supervisor as ensuring that the personnel worked in accordance with Tooheys’ directions, pursuant to clauses 4.1(b) and 5.1 of the 2002 Services Agreement. Specific technical direction would come from the Tooheys’ Engineers. He agreed that he liaised with Tooheys’ Management in order to comply with clause 12 of the 2002 Services Agreement, which set out reporting requirements. He also agreed that the requirement for Tooheys to notify FP of its personnel requirements under cl 6.1(a) of the 2002 Services Agreement was usually complied with by Tooheys notifying its requirements to him. However, he also noted that Tooheys’ Management would sometimes liaise directly with FP workers without his involvement, especially in relation to overtime or weekend work. If the job was to be done in a particular way, it would be communicated directly to the worker. If a worker was sent off site early, he would not always be notified.

[61] Mr Coombes described his job as involving the overseeing of a number of machines on the AB2 line. He was ‘on call’ with a hand held radio, if any of these machines broke down. He was also told to ‘walk the line’ to observe that the machines were functioning correctly and to check if any of the operators required assistance. Mr Coombes denied that he was directed in his job by FP Maintenance Coordinators. He was either directed by his Team Leader, Line Manager or Maintenance Manager, all of whom were Tooheys’ employees.

[62] Mr Henry listed a number of Tooheys Team Leaders and Engineers to whom he reported at work. He was directed day to day by his Team Leader, Brewery Technicians or Engineers. Mr Barrowman would also bring maintenance issues to his attention. If he had difficulties, he would ask the Brewery Electrical Engineer what he should do or how he should do it. He did not feel that he could decline to do jobs that had been issued or allocated to him. He said that 75-80% of his work was directed by Tooheys employees.

[63] Mr Henry referred to an incident in 2009 when a number of Engine Room Drivers were retrenched. Tooheys required that the fitters and electricians in Brewing perform checks in the Engine Room. Mr Henry declined to do these checks, as he was not getting extra pay for the extra work. He was told by Mr Barrowman that if he did not complete those checks, he would not have a position at Tooheys. Eventually, Tooheys agreed to pay an extra allowance to perform these duties.

[64] Mr Henry denied that Mr Speck directed him in his work - he noted that Mr Speck was not qualified as an electrician and could not appropriately direct him in his work. Mr Speck may have directed him to do other things, such as cleaning walls in relation to MEX. In cross examination by FP, Mr Henry agreed that all directions on a day to day basis were given to him by his Team Leader or Mr Barrowman, rather than Mr Sands.

[65] In cross examination by Tooheys, Mr Henry said that if he was required to work on unscheduled repair, he would be directed to do so by a Team Leader or Engineer. He could not recall being directed to repair a breakdown by a FP Maintenance Coordinator. He acknowledged that none of the Team Leaders or Line Managers were electricians. Once he was appointed on a permanent basis, he was allocated to a particular team as a Core Electrician. These teams would consist of approximately ten members - a Team Leader, a Line Manager, Operators, a Fitter and a Core Electrician. He continued to take instructions in relation to preventative maintenance from Maintenance Coordinators via MLS. In the event that there was a breakdown, Mr Henry stressed that he would be requested, rather than directed to attend to particular tasks. In cross examination by FP, Mr Henry agreed that the Maintenance Coordinators who directed him in his Non-Core role did not have an electrical background and nor did the Tooheys Line Engineer. Accordingly, he relied on Tooheys Electrical Engineers as to direction. Mr Barrowman would direct him if something required specific attention and whether he would work overtime.

[66] Mr Hancock commented that on starting his role as a Non-Core Maintenance Fitter, he reported to three FP Maintenance Coordinators - Paul Eason, Gerard Noonan and David Donaldson. However, he was also occasionally directed by Tooheys Line Engineers and Team Leaders. If there was a safety issue, sometimes the Production Manager would take him off his usual work. Most of his work dealt with preventative maintenance and was allocated by way of work order. He never felt that he was in a position to refuse a direction by Tooheys.

[67] Mr Hancock had acted in the role of Maintenance Coordinator on about six occasions, during which time he was required to work directly with Tooheys Line Engineers, Engineering Managers, Can Line Engineers, Electrical Engineers and Production Managers. He met with Management to organise the weekly Maintenance Schedule at the direction of the above mentioned managers. When he encountered difficulties in doing so, he spoke to Mr Sands, who told him to liaise with the Tooheys Electrical Engineer. He also coordinated maintenance with external labour hire companies on behalf of Tooheys and referred to himself in these situations as ‘Bruce Hancock from Tooheys’. Mr Llagas had also acted in the role of Maintenance Coordinator and was responsible for maintenance. He organised contractors and parts for work under the supervision of Line Engineers. In cross-examination by Tooheys, Mr Hancock agreed he would cover for Core employees when they took leave. He agreed that none of the Tooheys Team Leaders had the same qualifications that he had in relation to mechanical fitting. In cross examination by FP, Mr Hancock said that he was often required to take instructions from a Tooheys Engineer on specialist machinery on which he was required to perform maintenance. He would often convey his instructions to other Non-Core tradespersons.

[68] Mr Coombes agreed in cross examination by Tooheys, that his ‘Employment Agreement’ with FP set out that he was to report to Jason Keetley, who was FP’s Maintenance Supervisor at the time. In cross examination by FP, Mr Coombes said he only saw Mr Keetley ‘on the odd occasion’. He complied with directions given by Tooheys Engineers and Managers. Mr Coombes said that his job also involved undertaking preventative maintenance on equipment while it was off line. This work would be allocated by Tooheys Line Engineers by way of a job sheet which he was required to complete, in a similar fashion to Tooheys employees. He did not feel that he was in a position to refuse work that was allocated to him in this way. He did not receive any direction from FP in relation to how he performed his job.

[69] Mr Luke said in his written statement that he received all of his instructions and directions from Tooheys Team Leaders, who would also monitor how he performed his work. He did not understand that he was in a position to ‘knock back’ their requests. As he was a casual, he thought that if he did this, he would not receive further shifts. FP never issued directions to him as to how he performed his work. If he wanted to swap a shift, he would approach Tooheys or FP colleagues and then confirm with his Team Leader. In cross examination by Tooheys, Mr Luke agreed that in the casual jobs he had had with PepsiCo and Colgate for FP, he was told to go to the site and do as he was told.

[70] Mr Robinson said that after starting work as a Maintenance Fitter, he spent about 60% of the time working as a Maintenance Fitter in the bottling hall, where he would be directed by Mr Noonan, his Team Leader, Engineers and Line Engineers. In the remaining 40%, he was ‘all over the place’ as a maintenance or breakdown fitter and would be directed by a Team Leader or Team Engineer. He estimated that 99% of the directions issued to him were from Tooheys employees. He did not believe he could decline to perform a job that had been allocated to him. Tooheys would change his shifts if there was additional work that needed to be undertaken. Mr Sands was his usual point of contact in this regard. In cross examination by Tooheys, Mr Robinson said that when he performed preventative maintenance work in his Non-Core trade role, that work was set out from Tooheys’ computer system by Mr Gerard Noonan, John Hayhow or Mark Jelley. He agreed that Mr Noonan was a FP Maintenance Coordinator and approximately 50% of his instructions came from him. He could not say how Mr Noonan received or developed rostering information. He said that his job reports were handed to him in hard copy or by way of a plastic sleeve marked with his name. Once the job had been completed, the outcomes would be updated on MLS. When breakdowns occurred, he would usually be approached by a Line Engineer, a Head Engineer or Mr Noonan. When he was directed to do this, there would not be someone ‘standing over his shoulder’ watching what he was doing because he was considered to be a proficient fitter. Mr Robinson agreed in cross examination by FP, that because some of the machinery and equipment was unfamiliar to him, he would seek advice and direction from Tooheys Engineers or co-workers, as well as FP employees.

[71] In cross examination by Tooheys, Mr Llagas agreed that when he had worked as a Non-Core Fitter, it had primarily been on preventative maintenance and line breakdowns. When he worked on maintenance, he worked under the supervision of FP Maintenance Coordinators, such as Mr Noonan or Mr Rodney Paulson. If he worked on a breakdown, he would be approached by somebody, who could have been a FP employee or a Tooheys employee. When he became a Core Fitter, he worked as part of a team of which he was the only fitter. There was nobody ‘standing over his shoulder’.

[72] Mr Llagas listed a number of Tooheys Team Leaders and Engineers under whom he was supervised. They and the FP Maintenance Coordinators directed him and allocated jobs to him. He recalled specifically that he was asked once or twice a month to perform work in relation to production issues, usually on the labellers. If there were problems, his first contact would be with a Team Leader and, if they were not available, a Line Engineer. He claimed that he was not directed by Mr Falster, Mr Sands or any other FP employee. The only time he would contact Mr Sands was for the purpose of requesting or notifying leave. He denied he was directed by Mr Noonan and said that he would only be issued with work by Mr Noonan in the event of a breakdown while the line was not running. He said that he was allocated jobs in the same manner as Tooheys employees and he continued to receive directions from Team Leaders after he became a Core Fitter.

[73] In cross examination by Tooheys, Mr Llagas said that while he worked under the supervision of FP Maintenance Coordinators like Mr Noonan and Mr Paulson, he understood that they coordinated with Tooheys as to what maintenance work needed to be performed. If there was a breakdown, he could be approached by a Tooheys or FP employee to attend to it. He still performed maintenance work after he became a Core Fitter. He said he was relied on for his proficiency and competency as a Fitter. He clarified that, by direction, he meant the allocation of work shift by shift, rather than direct supervision. Mr Llagas agreed he had sent an email to Mr Sands on 9 January 2012 indicating that he would be back in Australia shortly and asking if there was any work. However, he had never received a response. He had understood that Mr Sands was still his supervisor. In cross examination by FP, Mr Llagas said that when he was in the Non-Core casual role, he had reported to a FP Maintenance Coordinator, but when he had begun work in a Core role, he had reported to a Tooheys Team Leader. He agreed that he had received guidance and direction from Tooheys Engineers, Team Leaders and Operators when he began working at Tooheys, as he was unfamiliar with the machinery. They were not necessarily ‘looking over his shoulder’, but would provide direction when he needed it.

[74] Mr Hulbert said that while he worked as a casual Maintenance Fitter, he took direction from Mr Paulson in his capacity as FP Maintenance Coordinator. He understood that Mr Paulson had weekly meetings with Tooheys Management. When he began working as a Core Fitter, he worked on the AB 2 production line for two years, and received direction from Mr Phil Dutton of Tooheys or Mr Sawyer, the Factory Manager. He did not believe that he could refuse a direction while working at Tooheys. Mr Hulbert denied that he was directed by FP Maintenance Coordinators as to how to perform his work. He had not generally received much in the way of direction as he is a qualified tradesperson. Preventative maintenance tasks were issued from MLS.

[75] In cross examination by Tooheys, Mr Hulbert agreed that there was planned and unplanned work. The latter was generally fixing breakdowns, which would be notified by a Brewery Technician over the radios. In cross examination by FP, Mr Hulbert said that he was not fully familiar with the equipment and machinery at the brewery. However, he did not get much in the way of guidance and direction as to how to use, repair or maintain this equipment and was largely left to work it out himself. The best people to assist him were the Tooheys Operators as Tooheys Engineers rarely got involved in breakdowns.

[76] Mr Blackley estimated that he covered core positions once every couple of months. He could cover for between a day or two, up to three or four weeks. Otherwise he worked in a Non-Core Fitter role. He was directed by a Maintenance Supervisor, who was usually a FP employee, except for the Maintenance Supervisor on the keg line and racking, who was a Tooheys employee. He emphasised that work was allocated by way of job sheets printed from the MLS system. He believed these job sheets were Tooheys’ documents. When he worked on the keg line, he would also take direction from Mr Schaffer. He occasionally filled the role of Maintenance Supervisor himself. This would require him to review the maintenance schedule and allocate work accordingly. In this role, would report to Tooheys Line Engineers and would meet weekly with Line Engineers and Team Leaders. If he was needed to cover a shift for someone else, he would be asked by Mr Sands. There had been five or six times where a Line Engineer or Team Leader had asked him to stay back to fix a problem. He did not feel that he was in a position to refuse any of these requests. The only contact he had with FP was with Mr Sands, Mr Falster and Mr Smith.

[77] In cross examination by FP, Mr Blackley said that he had had no experience working at a Brewery prior to starting in 2002. He agreed that he required assistance in operating and maintaining unfamiliar equipment and that Tooheys Line Engineers and Team Leaders were the most experienced people to ask. When he was working in a covering Core position or as a Maintenance Supervisor, he reported to Tooheys Team Leaders and Line Engineers.

[78] Mr Wilczewski commented that in his position as Core Shift Electrician in the Brewery, he was responsible for attending to electrical repairs and breakdowns and for undertaking preventative maintenance. He would occasionally be directed by a Team Leader to work on other repairs and breakdowns elsewhere in the factory. He generally reported to Team Leaders, Engineering Team Leaders and Maintenance Coordinators. It was usually the Team Leader who allocated his work. Preventative maintenance jobs were allocated on a monthly basis and he was required to access MLS to get his work orders and to complete his report afterwards. These work orders became more detailed in the last two years he worked at Tooheys. He never felt that he was in a position to decline work that had been allocated to him. He stressed he did not take direction from Mr Sands or anyone at FP. If he had a complaint or concern as to safety, he would report to Mr Barrowman, Mr Sadie or his Team Leader. He gave an example of when he had complained about poor lighting and unsafe work practices. He noted that he did not generally receive direction on how to do the breakdown work, but would occasionally do so when it was something with which he was unfamiliar. He gave the example of seeking Mr Barrowman’s advice on emptying yeast from blocked pipes. He agreed that Mr Speck issued directions as to what to do, but not as to how to perform these tasks. Because Mr Speck was not an electrician, he could not see how he could effectively issue him with directions, in any event.

[79] In cross examination by Tooheys, Mr Wilczewski clarified that his job was divided into servicing breakdowns and preventative maintenance. There was also a ‘third type’ of job allocated by a Team Leader. They were required to look around to determine if there were any dangers which needed to be fixed. This occurred when Mr Falster was the Manager. He also agreed that his Tooheys Team Leader was not an Electrician, but was a Chemical Engineer.

[80] In cross examination by FP, Mr Wilzczewski said that if he was directed to attend to a particular machine, he would be shown to that machine by a Team Leader or a Fitter as he was not familiar with the layout of the large premises. This was also true if he was issued with a job order. Mr Wilczewski also agreed that he was unfamiliar with the brewing equipment when he started working at Tooheys. He was trained by a Tooheys employee named Todd Whiteside. Where he was unsure as to how to deal with a problem, he would approach Tooheys Electricians and Engineers, especially Mr Glenn Yeats and Mr Owen Maher. He agreed that if he was required to work overtime, he would be approached by a Tooheys employee, usually Mr Barrowman.

Hours of work and rostering

[81] Mr Coombes said that he had worked the day, afternoon and night shift at Tooheys. Tooheys operated an annual roster, which rotated across the team. Mr Hancock said that if he was required to work outside of his regular role or hours, he would be told by Mr Sands, his Maintenance Coordinator or a Line Engineer. This included production line coverage work, a ‘core role’, in instances where others were absent. Where he performed this work, he would be directed by a Tooheys Team Leader.

[82] Mr Luke said that he worked on a roster that was published every Thursday, although he would also be directed by Team Leaders to work at other machines or on other duties. In cross examination by Tooheys, he agreed that there was a FP office on site at Tooheys and that a roster was prepared by Ms Budwee in this office after having taken input from the Tooheys Team Leaders and FP employees as to their availability. On being shown an example of a roster placed on a Tooheys noticeboard, he agreed that it presented the Tooheys and FP employees separately and that this was a typical roster. After being shown a FP branded document marked ‘Tool Box talk’ in which Proden employees were advised to contact their Labour Hire Coordinator if they were running late, Mr Luke confirmed that he would probably just call his Tooheys Team Leader if he was running late. He agreed that Ms Budwee had made it clear in 2006 that he should contact her if he was running late.

[83] Mr Luke agreed in cross examination by FP, that he was required to complete time sheets setting out his starting and finishing times and that these were required to be signed off by the Team Leader. It was his Team Leader’s decision as to whether he would be required for overtime. The Team Leader would sign off on the additional overtime on his time sheet and this would be given to Ms Budwee by placing it in a box outside the FP office at the Tooheys’ site.

[84] In cross examination by Tooheys, Mr Robinson was shown an email from Mr Sands setting out the 2011 shift pattern. He agreed that he received his rosters in a similar manner from Mr Sands. The roster would identify the work he would perform to cover shifts in the event of other employees taking planned leave, but not unplanned leave, like sick leave.

[85] Mr Llagas said that his rosters were the same as for Tooheys employees. He was also subject to the arrangements in relation to pre-paid overtime, although this ceased when he became a Core Fitter. If he needed to swap shifts, he would do so with another fitter in his team and then notify Mr Sands and his Team Leader. In cross examination by FP, Mr Llagas said that despite the terms of his Employment Agreement, he did not report day to day to Mr Sands, but to the Team Leader. Additionally, while the Employment Agreement set out that FP may require him to work certain reasonable hours, such requests where, in a practical sense, made by Tooheys employees and Management.

[86] Mr Hulbert said that a copy of a 42 hour rotating weekly roster was placed in the lunch room. He thought the roster had a Tooheys logo on it. In his capacity of Racking Core Fitter, he would order parts from the Tooheys Store and coordinate weekly maintenance. These latter responsibilities were devolved to him over time by his Team Leader. He noted that his hours were different from other members of the team, so that he could perform maintenance duties on Fridays.

[87] Mr Sands said that he also published the rosters on noticeboards and by email, although because Core workers were attached to a team there was no real need for them to have a roster as they ‘rotated with the same production team week in, week out.’ Draft rosters for Non Core Trades workers were sent to Tooheys Engineers prior to being released. If he did not hear back from the Engineers, the roster would be released.

[88] Mr Henry said that when he started working permanently, he had worked full time on a rotating roster, with normal weekly working hours of forty hours per week. If he wanted to change shifts, he spoke to Mr Sands or Mr Speck. In cross examination, he agreed that his work on preventative maintenance, in his period as a casual, was run as a scheduled maintenance program organised by FP Maintenance Coordinators. The Maintenance Coordinators liaised with Tooheys to determine the schedule and would convey that schedule to the relevant workers. Jobs setting out the machine on which work was to be done, and when it was to be done for preventative maintenance, were generated from a computer.

Work performed for other FP clients

[89] Mr Sands said that he did not work for any other company while working at the Tooheys site between 2003 and January 2012. In cross examination by FP, Mr Sands said that a small minority of the workers who worked at the Tooheys site, would have been told of the possibility of getting work at other sites.

[90] Mr Coombes did not perform work for any other company at either his own initiative, or at the direction of FP. He had never been requested to work at another site. He had attended the FP site at Glendenning about twice in the twelve years he had worked at the Tooheys site. Mr Hancock said that he worked full time hours at Tooheys and had never performed work for another company and was never required to do so by FP. Mr Luke said that he had worked with FP since 1996 and had previously been placed with positions at PepsiCo and Colgate. However, once he started work at Tooheys, he did not work at any other site.

[91] While working for Tooheys, Mr Henry had no other employment, other than the work he performed at Tooheys. He did not perform work for other companies at the behest of FP. Throughout his time working for Tooheys, his only direct and regular contact with FP was with Mr Sands, although he occasionally saw Mr Smith on site. The only time he attended the FP office at Glendenning was for his initial competency test and on the Saturday after he stopped working at Tooheys. Mr Henry admitted in cross examination by Tooheys, that clauses 7.1 and 7.2 of his contract of employment operated as a restraint of trade in that he was obliged not to work for a company for which FP had supplied labour for three months after his contract came to an end. However, he said that this was ‘only in certain places. I could perform my trade elsewhere.’ Mr Henry said in cross examination by FP, that it was not his understanding that he was a labour hire employee who could be directed to work at different sites.

[92] Mr Llagas said he had never attended the FP site until after his work at Tooheys ended in October 2011. He did not work for any other company, either at his own initiative or at the direction of FP, while he worked at Tooheys. He did perform some work for Omni for about three weeks in the period between 15 October 2011 and late January 2012.

[93] Both Mr Blackley and Mr Hulbert gave evidence that they had worked at other companies for FP during the period between 14 October 2011 to late January 2012 (Mr Blackley) and 2 November 2011 to 28 January 2012 (Mr Hulbert). However, they had not worked anywhere else while performing work for Tooheys. Mr Blackley said that he worked four shifts at Greens Foods through FP. In cross examination by Tooheys, Mr Hulbert said he had worked for Greens as a Fitter and he understood he was doing so pursuant to a services agreement between Greens and FP Group. He also worked at GlaxoSmithKline up until Christmas and performed railing work supplied to Rheem. He had performed work for Omni up until mid January as a casual. He had been told by Mr Smith that his employment with FP had finished and that he would be transferred to Omni to complete their obligation to GlaxoSmithKline. While he understood that Omni was his employer at this time, he had not signed a contract with Omni. In cross examination by FP, Mr Hulbert claimed that he understood that while he worked at Tooheys, he was to work only at the Lidcombe site. In cross examination by Tooheys, Mr Blackley agreed that he was not given a new contract of employment when he began working at Greens for FP. He had performed these shifts in late January.

[94] Mr Wilczewski said that he had performed work for other companies for FP prior to starting work at Tooheys in 2004 but after that time, he did not have any outside employment, either at the direction of FP or otherwise.

Provision of tools

[95] Mr Sands said he understood that trades workers would provide their own basic tool kit, but larger tools were provided by Tooheys. He was aware that Core Trades workers in Packaging were provided with personalised ear plugs. In cross examination, Mr Sands was shown a FP policy, of which he was aware, but had not read. It set out that ‘Each tradesperson is required to maintain a minimum basic toolkit as outlined below’, and listed a number of small tools for a ‘Basic Fitter Tool Kit’ and a ‘Basic Electrician Tool Kit’. In cross examination by FP, Mr Sands agreed that clause 5.2(c) of the 2002 Services Agreement, which set out that FP was to ‘maintain and secure site specific tools and equipment provided by Tooheys’, referred to Tooheys’ equipment. FP did not provide such equipment. Clause 5.2(d) set out that FP would ‘provide Personnel having a trade classification with all necessary consumable items such as gloves, earmuffs and eye protection to perform the Work’. While FP provided a uniform and safety boots, personal protection equipment would be provided by Tooheys.

[96] Mr Coombes conceded in cross examination by Tooheys, that he was required to provide his own tools. He agreed that he had signed a Memo circulated by Jason Keetley, dated December 2000, which was expressed in the following terms:

‘Feedback from the last couple of supply reviews has indicated some concern over the content of Packaging Trades toolkits, and whether or not Tradespeople are supplying the correct tools for their respective trade.

As F.P. Group has an obligation to ensure that its staff have the correct tools, a 1% pay increase will be paid to each Fitter and Electrician who signs on having the minimum basic tool kit as outlined below. The intent is that each Tradesperson will maintain their own toolkit to this level.’

Mr Coombes agreed that the purpose of this document was to remind him that he was obliged to maintain his own tool kit.

[97] In their statements, Messrs Hancock, Hulbert, Blackley, Henry and Llagas denied that Tooheys had supplied them with tools. While they had brought a generic tool kit or small tool bag of small tools or hand tools, Tooheys supplied larger tools. Mr Hulbert added that he thought that this was consistent with practice at most work sites. Mr Blackley said that Tooheys had supplied him with a welding helmet, grease guns, scrappers, files, replacement allen keys, drill and tap sets, easy outs and cleaning wires for the nordsen glue guns. Mr Coombes gave similar evidence in cross examination by FP. He also said that there were specialised tools for different machines. Tooheys also supplied tools like lathes, mills, benches, vices and welders.

[98] Mr Luke said that he supplied no tools at all and that everything he needed for work was provided by Tooheys. In cross examination by Tooheys, Mr Luke was shown a FP branded document marked ‘Tool Box Talk’ which stated that employees should contact their Labour Hire Coordinator (being Ms Budwee) should they require Personal Protective Equipment (PPE). Mr Luke claimed that he would approach his Tooheys Team Leader if he required PPE. In cross examination by FP, Mr Luke said that FP supplied safety footwear, but all other PPE was supplied by Tooheys.

[99] In cross examination by FP, Mr Robinson said he had been provided with safety glasses, a fitted hearing aid, a mask, gloves and wet weather gear by Tooheys. He would get this from the Tooheys store or from his Team Leader.

MEX, training and compliance with policies

[100] Mr Sands agreed that his Employment Agreement with FP set out that his employment was subject to compliance with policies of FP as published from time to time. Mr Sands was shown a bundle of policies, the first of which related to a standard format and approved and signed off by the General Manager. There were also policies relating, amongst other things, to mobile phone use, time sheet collection, work orders procedure, maintenance of tools by trades workers, motor vehicle use, procurement, internet browsing and email, discipline, environment, sick leave, uniform, personnel forms, equal opportunity and anti-discrimination, employee grievance and termination. Mr Sands was variously aware of these policies and said he had read some of them, but was not sure of others.

[101] Mr Sands had drafted the Brewing Core Trades Standard Operating Guidelines, a copy of which was annexed to his first statement. This set out protocols by which brewing teams were to communicate, deal with and escalate issues within the Team. He claimed that Mr Barrowman ‘fully endorsed’ his draft guidelines.

[102] In cross examination by FP, Mr Coombes said that he was given copies of policies and procedures to follow by Tooheys and that he understood that he was required to comply with Tooheys’ policies and procedures. These were what he worked under. FP policies may have been sent to him, but on a day to day basis, he interacted more with the Tooheys policies.. In his written statement, Mr Luke said that he was required to follow safety gear procedures, to follow the job procedure sheet setting out his work and the manner in which it was performed, to attend Team meetings and Team Toolbox talks. Mr Hulbert said that he understood that he was to comply with a certain standard of behaviour and safety in compliance with Tooheys policies whilst on site. In cross examination by FP, Mr Wilczewski agreed that he understood that he was required to abide by Tooheys policies and procedures. He was not aware of FP policies that applied to him. If he wanted to resolve an issue under the Fair Treatment Procedure, which referred to his supervisor, he would raise it with his Team Leader. The only procedures and policies he knew of that related to discrimination and harassment were those of Tooheys.

[848] Performance appraisals of FP personnel were conducted by FP Supervisors or Managers. Scores would be attributed to each employee and cross checked by the relevant Tooheys Managers to ensure accuracy and consistency. Given each employee worked in a team under the supervision of a Tooheys Supervisor or Engineer, it was entirely appropriate for FP to seek input on an individual’s performance from Tooheys management. Indeed, it is difficult to imagine how it could be fairly done otherwise.

Rosters and replacement of absent staff

[849] The rosters for FP workers were prepared by FP administrative staff, on instructions from Tooheys, as to its skill and competency needs from time to time. Plainly, this would vary during peak demand periods and FP would adjust the rosters accordingly. The evidence was that Tooheys had no involvement in the selection of actual person/s placed on the roster, but could express a view if it was felt a particular person did not meet its competency or skills standards. Rosters were displayed in the canteen and identified FP workers and Tooheys employees separately.

[850] FP was responsible for replacing absent workers and would advise Tooheys accordingly. This arrangement seems understandable given that leave requests and approvals were made directly to FP managers and records were kept by FP as to each worker’s leave entitlements and accruals. Leave applications and replacement workers would be acknowledged by Tooheys Supervisors or Engineers, who could object if they felt the replacement worker did not possess the competencies or skills that Tooheys required, and ask for someone else.

Access to Tooheys facilities

[851] FP workers had access to the Tooheys canteen, gym, car park, Tap room (bar) and store. FP workers were sometimes invited to the Tooheys Christmas party and other Tooheys sponsored social events. Team members were required to attend the annual team day. I do not apportion any great weight to these matters as they amount to sound industrial relations practices and enhance a cooperative team based workplace. Moreover, the Tooheys facilities were not limited to its own employees and FP workers, but were available to all contractors on site.

Access to Tooheys computers

[852] It makes obvious practical sense that FP workers were able to access the Tooheys computer systems, in particular MLS, in order to be able to perform their functions in accordance with Tooheys’ requirements. Indeed, they would not have been able to perform their functions if they were unable to access the Tooheys computer systems.

Protective clothing

[853] FP workers wore jackets and shirts emblazoned with the FP logo so as to differentiate them from Tooheys employees. Protective boots were supplied by FP, but all other protective clothing was supplied by Tooheys.

Summary

[854] It seems to me that if Tooheys had an overwhelming, almost veto power over every aspect of the FP workers’ employment (as FP contended), there would have been little need for a FP Site Supervisor or FP Maintenance Supervisors. Nor would there be a need for joint meetings on production, scheduling, safety, training, replacement of absent workers and additional labour for peak demands. All of the evidence points to a practical arrangement on site, which involved joint collaboration and cooperation, a scenario which, in my judgement, was an unremarkable example of a typical labour hire arrangement.

[855] True it is, as FP submitted that, unlike most labour hire arrangements, the applicants were not engaged in the performance of their work on a temporary basis to fulfil a client’s short term needs or deployed from time to time to other work sites. Plainly, they were all engaged at the site for substantial, unbroken periods of time. In my view, the length of time of engagement at a particular site is not an indicia of the nature of the employment relationship. The reality was that they were available to work at other of FP’s clients, as demonstrated by a number of them actually doing so, before they commenced at Tooheys and after they were removed from the Tooheys site.

[856] In any event, it made good business sense to have the same persons working at the site over a considerable period of time to ensure continuity of knowledge and experience. It was of a great benefit to both FP and Tooheys to have longstanding workers on the site; thereby not incurring new recruitment and training costs. In any event, given that Tooheys accounted for some 95-97% of FP’s client base, it was hardly surprising that the same workers remained on the Tooheys site for lengthy periods of time.

[857] At this point, I would make some additional observations on Mr Seck’s reliance on Ramsey and his submission that Buchanan J’s findings in that case that ‘Tempus bore none of the characteristics of an employer’ could similarly apply to FP. In my view, there are real substantive differences between Tempus and FP, which actually work against Mr Seck’s submissions. These differences include:

1.	Unlike Tempus, FP operated a business of its own, independent of Tooheys and involving other client companies.
2.	Obviously, Mr Seck could not deny that FP made money for its directors and shareholders. However, he downplayed the amount of fees paid by describing them as a small margin relevant to the total fee paid paid by Tooheys. Given Mr Gorman’s evidence as to what he and other Directors earnt, that was a brave submission to put. In any event, FP made money over a considerable period of time, not only from Tooheys, but also from its other clients.
3.	FP advertised for and recruited staff for engagement according to a particular classification, without naming Tooheys as the workers’ ultimate designated site.
4.	FP was not obliged to terminate a worker’s employment merely because Tooheys decided a particular person was no longer required on the site. Indeed, that is precisely the situation which occurred when the applicants remained on the books of FP and were paid by FP after they were no longer required on site after 14 October 2011.
5.	Buchanan J found that Tempus was set up as a ‘sham’ in order for Ramsey to avoid its legal employment obligations to its employees. As I have earlier said, I do not accept, nor could it be supported by any objective evidence, that the relationship between FP and Tooheys was a ‘sham’.

Administration of entitlements and work arrangements

[858] There is no dispute that FP was responsible for all the applicants’ entitlements and the administration and record keeping related thereto. FP had an onsite office, Site Supervisor and on site administration staff for that purpose. In particular, FP was responsible for:

recording and maintaining all applications for positions with FP;

paying and recording the applicants’ wages and all their Agreement and statutory entitlements;

preparing, signing off and providing payslips to the applicants;

paying and remitting to the relevant superannuation fund, the applicants’ superannuation entitlements;

receiving and approving applications for leave;

processing, paying and recording all of the applicants’ leave entitlements, such as long service leave, annual leave and sick leave;

recording and remitting payroll tax for the workforce to the Government;

preparing and signing off of the applicants’ group certificates for tax return purposes; and

calculating and remitting premiums for workers’ compensation purposes.

Responsibility for redundancy

[859] It seems to me that the ‘elephant in the room’ in this case is whether the applicants were genuinely redundant at some point and which entity is responsible for any redundancy benefits that might now be payable. The fact that FP launched s 120 proceedings last year demonstrated that the prospect of paying the applicants’ redundancy pay was an issue which FP was very much ‘alive’ to. Of course, if Tooheys is found to be the true employer, the redundancy benefits are very significant. It is not entirely clear whether FP had its own discrete redundancy scheme, although its enterprise agreement refers to the provisions of the Employment Protection Act 1982 (NSW) as being applicable. Nevertheless, at the very least, the applicants may be entitled to the minimum NES scale of redundancy benefits; See: s 119 of the Act.

[860] As will be seen shortly, while the terms of the 2002 Services Agreement (and Appendix E) are clear as to certain of the statutory entitlements being included in the rolled up fee paid by Tooheys to FP, there is no specific mention of redundancy anywhere in the Agreement (including as to its non-inclusion). However, cl 11(e) states:

‘11. Industrial Relations Matters

11.1 FP acknowledges and agrees:

...

(e) that it is solely responsible and liable for all of the Personnel’s employee entitlements including without limitation, salary, annual leave, sick leave and other employee entitlements’

In my opinion, these words are unambiguous, clear and beyond argument. FP is solely responsible for all the workers’ entitlements, whether specified or not. It must include both superannuation and redundancy.

[861] But more importantly, the plain intention of the parties that redundancy was a component of the 2002 Services Agreement’s fee structure can be evident from an email dated 30 October 2001 and attachments from Ms Huddy, on behalf of FP, sent to Tooheys during the negotiations for the 2002 Services Agreement. Ms Huddy says:

‘Please find attached break up of administrative charges to Tooheys, together with the updated matrix of charges.’

[862] Under the heading ‘Administration - total Tooheys costs (of $556,570.52), is a component for Redundancy of $81,309.31. This figure is then extrapolated as follows:

‘Redundancy - Contract

24 persons

(Using Tooheys trade rate $19.30/$20.00

Wkly pays	No Wks	Yrs est	Per annum
4 @45/7day	$5,506.36	10	$55,063.60	3.5	$15,732.46
4 @45/7day	$5314.04	10	$53,140.40	3.5	$15,182.97
6 @ 43/5	$6,416.52	10	$64,165.20	3.5	$18,332.91
6 @ 43/5	$6,192.60	10	$61,926.00	3.5	$17,693.14
1 @ 45/5	$1,143.27	10	$11,432.70	3.5	$3,266.49
1 @ 45/5	$1,103.37	10	$11,033.70	$3,152.49
1 @ 43/5	$1,032.10	10	$10,321.00	3.5	$2,948.86
1 @ 40/5	$1,750.00	10	$17,500.00	3.5	$5,000.00
$81,309.31’

[863] In oral evidence, neither Mr Gorman nor Mr Porretta could recall seeing this document. Indeed, Mr Gorman went further. He believes it was a document prepared by Tooheys and not FP at all. Mr Porretta’s lack of recollection is explicable in that he had little involvement in the 2002 Services Agreement negotiations. However, given my earlier adverse credit findings as to Mr Gorman’s evidence and the paucity of any other evidence supporting Mr Gorman’s view, I am satisfied that this matrix was prepared by Ms Huddy under instructions from FP, for the purposes of the 2002 Services Agreement negotiations. Moreover, the document is also consistent with Tooheys’ unwavering insistence that it was not responsible for redundancy accruals and would not agree to the inclusion of such accruals in the 2002 Services Agreement. FP had been told as much on many occasions, including prior to the 2002 Services Agreement.

[864] In addition, Mr Gorman’s view is discordant with the inclusion in FP’s own enterprise agreement of redundancy benefits based on the provisions of the Employment Protection Act 1982 (NSW). I note that Mr Sands believed from conversations with Mr Gorman, that Tooheys had agreed to meet all ‘exit’ costs, such as redundancy, accrued annual and long service leave, should the relationship between Tooheys and FP ever come to an end. Not only was such a suggestion in clear contradiction with the terms of the 2002 Services Agreement (See above: Cl 11 and App E), but there is not a scrap of supporting evidence that this was the position. If Mr Gorman did convey such a view to Mr Sands, he was either grossly mistaken or deliberately intended to mislead him.

[865] There is no evidence to suggest that Ms Huddy did not send the email and the attached matrix of charges. If FP strongly believed that the document was anything other than what it purported to be, then it was open for FP to call its own employee, Ms Huddy, to deny the document was her creation on FP’s behalf. The failure to do so invites a clear Jones v Dunkel inference that Ms Huddy’s evidence would not have assisted FP’s case.

[866] Accordingly, it seems to me that FP always held itself out as providing a contingency for the applicants’ redundancy, through the fees paid by Tooheys. To the extent that this component and other of the applicants’ statutory entitlements have not been paid to them, the question arises as to where the contingency for the entitlements has ended up? It seems to me that, at the very least, FP’s management has some explaining to do.

Ongoing employment

[867] For me, however, the fateful issue in this case is the fact that the applicants continued to be paid by FP for some considerable time after the alleged date of termination by Tooheys, being 14 October 2011. Indeed, Messrs Henry, Llagas, Hulbert, Blackley and Sands were transferred to other of FP’s clients during and after this period. Applications for leave by them continued to be approved by FP during this period (Mr Llagas and Mr Hancock).

[868] From this evidence, another legitimate question arises, which requires answering. If some of the applicants were transferred to other of FP’s clients between 14 October 2011 and 28 January 2012 and FP was presumably being reimbursed by these clients while the Tooheys’ contract remained on foot, then was FP was being paid twice for the same services? Surely, this raises serious questions as to FP’s bona fides and where the fees attributable to the applicants’ accrued entitlements, ended up. I note that Mr Toomey deposed that Tooheys continued to pay fees to FP until 26 March 2012. Mr Smith said that this was for services rendered prior to 28 January 2012. Assuming Mr Smith was correct, it begs the question as to where these monies were going when the applicants’ entitlements remained unpaid.

[869] Mr Seck, wisely, had little to say on this point. I do not criticise him in that respect, as I suspect he appreciated these facts represented a significant hurdle for his client to overcome. FP’s defence was that it continued to pay the applicants merely as a charitable act to ensure they were not disadvantaged. It is unclear where the evidentiary foundation for this submission comes from. Nevertheless, I must observe that it sits rather uncomfortably with:

a)	FP organising and probably paying for the applicants’ legal advice in an attempt to create doubt in their minds as to their true employer;
b)	Mr Sands’ evidence that the purpose of the applicants’ unfair dismissal applications was to put commercial pressure on Tooheys in its contractual dispute with FP. In other words, FP had little interest in the legality or merits of the applicants’ claims of being unfairly dismissed; and
c)	FP’s withholding of the applicants’ statutory entitlements when it may be safely assumed it had already received a fee containing a component for such entitlements. One notes from the terms of the new employment offer from Skilled, that all accrued entitlements under FP’s contract had not been remitted to it for the purposes of any ongoing continuity of service.

[870] I gained an overwhelming sense that, rather than some genuine, heartfelt concern at the applicants’ circumstances, the uppermost and all-consuming motivation of FP was purely one of self interest. There is nothing particularly heinous about pursuing self interest. As former Prime Minister, Paul Keating, once said, ‘in the horse race of life, always back self interest - at least you know that’s the horse which will always be trying’ (paraphrased). On the other hand, when self interest comes at a cost to others or where the object of one’s self-interested conduct is to confuse or deceive, it takes on a somewhat different complexion.

[871] After considering all of the evidence and the whole of the relationship, the only logical conclusion is that there was no contract of employment between the applicants and Tooheys which had been extinguished by the actions of Tooheys on 14 October 2011. It follows that the real and effective employer of the applicants, both prior to, and after their removal from the site was one and the same entity - FP Group Pty Ltd.

[872] I am fortified to this conclusion by the actions of the applicants themselves post 14 October 2011. Even with the benefit of legal advice, they took no action to dispute their alleged terminations by Tooheys until some months later. Given these circumstances and in the absence of any explanation from Ms Pendlebury, the inference posed by Tooheys - that the timing of the applications was deliberately designed for some other collateral purpose - is highly persuasive. After all, if the applicants and/or their legal advisors were so confident that Tooheys was the real employer, why wait months to file unfair dismissal claims knowing, as any competent industrial practitioner would, that a delayed application jeopardised its acceptance by the Commission because it would be well ‘out of time’? It is manifestly illogical. But what happened is very suspicious.

[873] When the applicants attend a meeting with Ms Pendlebury on 15 October 2011, organised by Mr Sands, under Mr Smith’s direction, and presumably paid for by FP, they are all completely disavowed of their long held view that FP was their employer, or at the very least, confused. Suddenly, they were and always had been employees of Tooheys. Perhaps this conversion was encouraged by the prospect of a very lucrative Tooheys redundancy scheme being dangled in front of them.

[874] What they really believed was elicited from the cross examination by Counsel for Tooheys. A few extracts from transcript serve to illustrate the point:

Mr Coombes:	I suggest to you, you knew around this time you were going to be employed by the FP Group?---Yes.
Mr Hancock:	You understood you’d be offered employment and you’d come be employed by the FP Group. Correct?---That’s correct. :... Up until the time you had this meeting, you’d always operated on the basis and never raised a complaint against it, that you were an employee of FP Group? That’s true?---Correct. ... You took no issue with that because that was your understanding of the position throughout this 10-year period?---Yes.
Mr Luke:	No, and indeed all throughout your time at Tooheys, the FP Group had always said that they were your employer?---Yes.
Mr Henry:	You didn’t approach Tooheys because you knew you had no direct contractual relationship of employment with Tooheys. That’s right isn’t it?---That’s correct, yes. ... As at July 2008, that’s what you understood to be the true contractual relationship between you and FP Group?--- Yes, that’s correct. And that position never changed, did it?---No.
Mr Llagas:	There was no confusion in your mind as to who your true employer was at that point in time?---No. ... So you never understood Tooheys to be your employer for any purpose until well after 14 October, did you?---That’s right.
Mr Blackley:	You understood at that time your employer was the FP Group - - -?---Yes. ... It was only after the 15th or so of October you started to have doubts as to who your true employer was?---Yes.

[875] Mr Seck submitted that the evidence of the applicants as to their true employer was contradictory. I disagree. He highlighted the concessions Mr Parry obtained from the applicants in cross examination as to who they believed to be their employer (FP) and then his cross-examination which drew the very opposite response (Tooheys). The reality of the relationship as they understood it at the time they entered into the relationship with FP and how they had always viewed that relationship for many years, was tainted when FP, and possibly Ms Pendlebury, convinced them of the complete opposite.

[876] Nevertheless, Mr Seck was correct to add that I would look to other of the objective evidence to establish the facts of the relationship. That objective evidence, untainted by FP’s intervention until October 2011, was that all of the applicants knew and understood they were employees of FP. Until October 2011, there is no evidence that FP or anyone else had sought to put the seed of doubt into any of the applicants’ minds. The fact the seed was sown in October 2011, without any demur for years from FP or its directors must surely call into question its bona fides.

[877] Perhaps, the views of the applicants are no better illustrated than by the evidence of Mr Henry. Mr Henry’s understanding of the employment relationship was clearer than the others. Given Mr Henry had previously owned his own business for 12 years, during which he had engaged labour hire companies, this was perfectly understandable. I found his evidence to be persuasive. Mr Henry accepted that he knew FP issued his pay, group certificates, uniforms, payslips and managed his workers’ compensation insurance, superannuation and leave applications.

[878] Mr Henry had signed an employment agreement with FP. He said it was not a misrepresentation or a ‘sham’. He was absolutely clear about his understanding that he was, and continued to be employed by FP. He acknowledged that he had signed a confidentiality and restraint provision in his employment agreement which was designed to protect FP’s interests. He believed the policies he was required to comply with were FP’s policies. He said that he did not have to go to anyone, other than Mr Sands, to seek approval for leave.

[879] Mr Henry’s evidence as to Ms Pendlebury’s role was helpful, but not conclusive. He believed that he had signed a retainer agreement with Ms Pendlebury around 15 October 2011. However, he had never received an invoice from Ms Pendlebury and believed Mr Sands (on behalf of FP) was paying the legal bills. There is no doubt that a number of the applicants had signed an authority for FP to act on their behalf.

[880] Mr Henry’s evidence was, and Mr Smith agreed, that he had prepared his unfair dismissal application with help from Mr Smith, who prompted answers to the questions set out in the application. Mr Smith’s admission was extraordinary. What on earth was the General Manager of a respondent to an unfair dismissal application, doing in helping an applicant to file claims against it? One might speculate that Mr Smith’s intentions were far from altruistic.

[881] In addition, it was Mr Smith’s oral evidence that Tooheys had been told before September/October 2011 that FP regarded Tooheys as the true employer. He believed it was Mr Sands who would generally ‘verbalise’ this view when there were requests by Tooheys for additional labour on the site. Nowhere in his written evidence was this claim mentioned and, importantly, neither was it mentioned in any of the evidence of Mr Sands himself. Mr Smith believed there was documentation to corroborate his view. However, when asked if his lawyers had provided to the Commission everything which was relevant, he answered: ‘Well, I didn’t think something like that was particularly significant.’ He claimed he could bring proof to Court the next day. Needless to say, nothing was produced.

[882] I quote this particular part of Mr Smith’s evidence to demonstrate my wider concerns that I found him to be a generally uncooperative witness. His evidence was self-serving. He gave answers to self evident propositions unfavourable to his case, which were unresponsive, vague or confusing. I consider his evidence to be generally unhelpful and designed to preserve the facade of a concern for the applicants’ interests, rights and entitlements. I make no other findings as to the credit or otherwise of any of the witnesses in this case.

CONCLUSION

[883] This matter has been principally concerned with the reconciliation of firmly held and well argued positions of the two respondents, Tooheys and FP, as to which one of them is the true employer of the applicants. As an alternative, FP has raised the concept of joint employment, should the Commission find against its claim that Tooheys was the true employer. I have earlier determined that I do not consider this to be a case where the characterisation of joint employment can be applied.

[884] Notwithstanding that it should be of little consequence to the applicants as to which entity was their true employer, there was no subtlety as to which camp the applicants’ case was directed to supporting. Maybe this is a reflection of what they perceive to be the relative financial strength of the two entities and their respective capacity to pay outstanding entitlements, including redundancy pay. However, that is not the point. What matters is that a determination by the Commission of the true employer of the applicants, will have the practical effect of determining which entity is ultimately the respondent to any further unfair dismissal proceedings.

[885] For all the aforementioned reasons, and after carefully weighing up the various indicia comprising the whole of the relationship between Tooheys and FP, the purpose and intent of that relationship and the terms of the 2002 Services Agreement, I am satisfied, and so find, that FP Group Pty Ltd was the true employer of the applicants, at all relevant times, and relevantly, at the time of the their dismissals.

[886] While it is unnecessary for me to make any findings or further comment on whether ‘exceptional circumstances’ were found to exist if Tooheys had been identified to be the true employer, I would wish to briefly highlight the evidence of Mr Sands that the applications were filed against Tooheys for the sole purpose of applying pressure to Tooheys in respect to the commercial dispute FP had with it. I consider, these circumstances would have made it highly unlikely that the Commission would find in favour of extending the time for filing of the applications, had that been necessary. This is so because, in my view, if the sole or primary purpose of filing an unfair dismissal application is for some other collateral and ulterior purpose, it would be inconsistent with the objects of Part 3-2 of the Act and unlikely to survive any merit review. I need say no more on the subject.

[887] For completeness, I propose to dismiss the following unfair dismissal applications pursuant to s 587(1)(a) of the Act, as not having been made in accordance with the Act:

U2012/176

U2012/201

U2012/177

U2012/178

U2012/181

U2012/180

U2011/15073

U2012/203

U2012/179

U2012/4104

[888] In view of my adverse comments on the evidence of two of FP’s witnesses, it is probably inappropriate for me to deal with any future substantive proceedings involving the applicants and FP. Accordingly, matters U2012/4341, U2012/4631, U2012/185, U2012/183, U2012/182, U2012/184, U2012/204, U2012/187, U2012/200, U2012/186 will be remitted to the Unfair Dismissal Unit for further programming.

[889] I wish to stress that notwithstanding my conclusions on the preliminary jurisdictional issue, the relevant parties should now be encouraged to engage in further discussions in an effort to resolve the applicants’ claims of unfair dismissal and any claims of outstanding entitlements due to them.

DEPUTY PRESIDENT

Appearances:

Mr J Phillips, Senior Counsel, with Ms E Magill, Solicitor for the applicants

Mr M Seck, Counsel with Ms D McEvoy, Solicitor for FP Group Pty Ltd

Mr F Parry, Senior Counsel with Mr Y Shariff, Counsel for Tooheys Pty Ltd

Hearing details:

2012.

Sydney:

2 October, 3 October, 4 October, 5 October, 8 October

2013.

Sydney

21 January, 22 January, 23 January, 24 January, 25 January

11 April, 12 April

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