Chad Edwards v Bamboo 61 Pty Ltd
[2023] FWC 865
•20 APRIL 2023
| [2023] FWC 865 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Chad Edwards
v
Bamboo 61 Pty Ltd
(U2022/12327)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 20 APRIL 2023 |
Application for an unfair dismissal remedy
Mr Chad Edwards (the Applicant), a former Software Engineer of Bamboo 61 Pty Ltd (the Respondent), made an application to the Fair Work Commission for a remedy in respect of his dismissal. The Respondent raised jurisdictional objections to the unfair dismissal application on the bases that the Applicant had not met the minimum employment period and therefore is not protected from unfair dismissal, and even if the Applicant had met the minimum employment period, he earned over the high income threshold and was not covered by a modern award or enterprise agreement.
Turning first to the minimum period of employment. The Applicant commenced employment on 4 April 2022 and was dismissed on 7 December 2022 (amounting to some eight months and three days of continuous service). If the Respondent was a small business employer (that is an employer with fewer than 15 employees), to be protected from unfair dismissal, the Applicant’s period of continuous service at the time of the notice of his dismissal must have been a year. However, in circumstances where the Respondent was not a small business employer, the minimum period of employment is six months, which the Applicant would have met. The Respondent asserted it was a small business employer and the Applicant had not served a year of continuous service. The Applicant argued to the contrary.
Regarding award coverage, the Applicant pressed that his role as a software developer was covered by the Professional Employees Award 2020[1] under the Information technology and telecommunications services stream, and he is therefore entitled to bring an unfair dismissal application pursuant to s 382(b)(i) of the Fair Work Act 2009 (Cth) (the Act). It is uncontroversial that the Applicant’s annual rate of earnings exceeded the high-income threshold ($162,000) (s 382(b)(iii) of the Act), and an enterprise agreement did not apply to his employment (s 382(b)(ii) of the Act).
Briefly stated, I am satisfied that the Applicant has not completed the required minimum employment period and therefore the Respondent’s jurisdictional objection is upheld. In the circumstances, it has proved unnecessary to contend with the argument that the Professional Employees Award 2020[2] covered the Applicant. My detailed reasons follow.
Background
Mr Blake Cassidy, Chief Executive Officer of the Respondent, gave evidence on behalf of the Respondent. Mr Cassidy clarified that he was employed by Bamboo 1 Ltd (a company listed in Delaware, USA) (Bamboo 1) at the time of the Applicant’s dismissal.[3] Mr Cassidy said that Bamboo 1 is an operational subsidiary of Bamboo Holdings Limited (Parent Company).[4]
Mr Cassidy said that the Applicant commenced employment with the Respondent on 4 April 2022 and his dismissal was on 7 December 2022, which amounted to a period of service of 8 months and three days.[5] Mr Cassidy stated that the Applicant was employed on a salary of $180,000.00 per annum plus superannuation.[6]
Regarding the Applicant’s qualifications, Mr Cassidy said that the Applicant provided his ‘CV’ on application for the position, and it did not state that the Applicant possessed a university degree of three years or more.[7] Further, the CV did not refer to the Applicant being a ‘Certified Professional of the Australia Computer Society’.[8]
Mr Cassidy said that he had reviewed the ‘Australia Computer Society Certificate Guidelines’, which he had included in his evidence at Annexure R15 and a copy of the SFIA Level 5 Responsibilities (see Annexure R16). Mr Cassidy expressed the view that based on his interactions with the Applicant, the Applicant did not demonstrate he had undertaken the development activities required to be accepted as a Certified Professional by the Australian Computer Society and was not operating at a SFIA Level 5.[9]
Regarding the Respondent, Mr Cassidy gave evidence that it was a wholly owned subsidiary of the Parent Company and that the Parent Company had no employees.
As of 7 December 2022, Mr Cassidy gave evidence that the Respondent employed the following five employees:
a) the Applicant;
b) Elliot Lyons;
c) Maria Bloomberg;
d) Robert Beer; and
e) Tracey Plowman.
In support of his evidence, Mr Cassidy referred the Commission to a copy of the payroll report for the period of 7 December 2022, which, he said, listed the employees and their pay summary.[10]
Confirming again that at the relevant time he was employed by Bamboo 1, an associated entity of the Respondent, Mr Cassidy provided a copy of the payroll report of his pay in that period.[11] Mr Cassidy confirmed the total number of employees of the Respondent and its associated entities as six.
Mr Cassidy acknowledged that the Respondent engaged a number of independent businesses for various services at around the time of 7 December 2022, who provided routine or regular work or services for the Respondent.[12] In this respect, Mr Cassidy referred to the Respondent:
a) utilising the service of Mr Jim Paleo through contractual arrangements with his companies, Coin Republic Pty Ltd (ABN 97 623 712 783) and Velsoft Pty Ltd (ABN 84 139 421 153), and whilst the Respondent did not have a written contract with Coin Republic Pty Ltd, the Respondent had received invoices from the company for work performed by Mr Paleo;[13]
b) entering into a commercial contract with Velsoft Pty Ltd for IT management consulting services to be provided to the Respondent;[14]
c) having engaged the services of The Office (WA) Pty Ltd (ABN 30 643 996 114) for the provision of contract bookkeeping services albeit there was not a formal written contract between the parties, and The Office (WA) Pty Ltd provided the services of Mr Adam Dean;[15]
d) holding a commercial contract with Banksia Management (WA) Pty Ltd t/as Banksia Capital (ABN 26 159 952 299) to supply ad hoc management consulting services such as executive coaching and strategic finance advice (services provided by Mr Mark Dutton and Ms Clare Combe);[16]
e) having engaged a number of individual independent contractors who operated their contracting services through their own ABN, including:
i.Mr Nicholas Baxter (ABN 76 859 100 984) who supplied contactor services as a data science intern for approximately four hours per week. Mr Baxter is said to be a full-time student and also works in a local golf club. He is said to manage his own accounts, finances, business operational tools and equipment. There is an agreed scope of work with Mr Baxter which is based on hours engaged in the scope of work;[17]
ii.Mr Kent Alorro who is said to be based in the Philippines and provides customer support services in blocks of hours;[18]
iii.Ms Alyssa Gascon who is said to be based in the Philippines and provides customer support services in blocks of hours;[19] and
iv.Mr Craig Jackson (ABN 28 172 871 927) who is said to provide marketing services and provides a similar service to other companies. He has a full-time job with another company and also manages his own accounts, finances, business operational tools and equipment. There is an agreed scope of work with Mr Jackson, which is based on hours engaged in the scope of work by an independent contractor;[20] and
f) having a commercial contract with TechMagic LLP (TechMagic),[21] a company based in the United Kingdom which has 400 employees and contractors in the UK and throughout Europe to service its clients, of which the Respondent is one. On around 7 December 2022, TechMagic supplied the following employees or contractors to perform work on behalf of the Parent Company and the Respondent, the Respondent understood that most of the workers were largely based in the Ukraine:
i.Viktor Kis;
ii.Anastasia Kompaniiets;
iii.Olha Maksymets;
iv.Anton Nazarenko;
v.Bohdana Muzyka;
vi.Oleksandr Horobets; and
vii.Anna Bilokur Demchenko.[22]
The Applicant outlined that he had received a Diploma in Interactive Gaming – Media Design School in 2009 and became a Certified Unity Developer in 2015.[23] The Applicant stated that he had accumulated roughly 13 years of experience implementing software solutions in a variety of general purpose languages including PHP, C# and TypeScript over the period from 2009 to 2023.[24]
Since the completion of his diploma in 2009, his primary income has been derived from writing computer code and designing software solutions in fields such as game development, VR research, and web applications including business management, telecommunications, FinTech, gambling and insurance.[25]
The Applicant said that he had spent one to ten hours per week reading books related to his field of expertise in order to continue his professional development over the last year and listened to software engineering podcasts.[26]
Within the Respondent’s workforce, the Applicant reported to Mr Paleo and in his absence to Mr Oliver Tweddell.[27] The Applicant noted that he worked on a laptop which he had purchased and always worked remotely with an internet connection he paid for.[28]
The Applicant said that he attended daily meetings with the team that officially reported to Mr Paelo (the Tech Team) and witnessed that all members of the Tech Team were expected to attend these daily meetings with the exception of Mr Baxter.[29] In addition to the daily meetings, the Applicant said that he attended at least two monthly ‘Town Hall’ meetings where most team members were present with the exception of the directors.[30]
The Applicant stated that he was involved in conversations about projects where the Tech Team were implementing technical solutions in the transition from one ‘Customer Support SaaS’ to another.[31] The Applicant said that from attending those meetings, it was clear to him that the Respondent paid for products concerning the Customer Service SaaS and that Mr Alorro and Ms Gascon were required to use these products to perform their duties.[32]
The Applicant referred to several workers in his witness statement that formed part of the Respondent’s workforce. Those workers included:
a) Jim Paleo;
b) Oliver Tweddell;
c) Robin Tang;
d) Max Brorvsky;
e) Yaroslav Kutz;
f) Adam Deane;
g) Ken Alorro;
h) Alyssa Gascon;
i) Ben Ritchie;
j) Tracey Plowman;
k) Elliot Lyons;
l) Craig Jackson;
m) Anton Nazarenko;
n) Vicktor Kris;
o) Matt Tyler;
p) Matthew Carter;
q) Chris Howard;
r) Volodomyr Danylko;
s) Anastasia Kompaniiets;
t) Oleksandr Horobets;
u) Oleksandr Salamakha;
v) Romon Kolodyly;
w) Oleh Koval;
x) Frank Pethica;
y) Sarah Kinsella;
z) Josh Thillagaratnam;
aa) Maria Blomberg;
bb) Anna Bilokur-Demochenko;
cc) Steve Smith; and
dd) Robert Beer.
Whilst the Applicant referred to several workers having been dismissed, resigned or otherwise the relationship with the Respondent had been terminated, it was difficult to ascertain from the Applicant’s evidence when the abovementioned workers were employed, engaged or otherwise provided to the Respondent by a third party. The Applicant, however, did note that he was aware that the Respondent had dismissed Frank Pethica. Further, the Applicant asserted that Oleksandr Salamakha, Roman Kolodly and Oleh Koval were included on the organisational chart, but he had never met them or saw evidence of their work contribution.
At hearing, the Applicant conceded, appropriately in my view, that some of the workers he had referred to in his witness statement were not working for the Respondent at the time of his dismissal. These included Jai Kai, Yaroslav Kutz, and Chris Howard. However, it proved necessary at hearing for the Respondent to address some the persons the Applicant had referred to in his evidence. The following can be distilled from the evidence of Mr Cassidy:
a)Mr Ben Ritchie is a major shareholder of the Respondent and is a director of the Parent Company and the Respondent. He assists on special projects in his spare time and he provides the Respondent with a couple of hours a week to attend board meetings and company catch-ups;
b)Mr Volodomyr Danylko was an employee or contractor of TechMagic. He was a junior developer who joined the Respondent out of TechMagic’s training program. He left the Respondent business as of 30 September 2022 when the Respondent implemented budget cuts;
c)Mr Roman Kolodly was provided by TechMagic. He assisted with the delivery of a project regarding a tracking and monitoring system for a period of about three to four months – finishing off in or around June 2022;
d)Mr Max Brorvsky worked alongside Mr Kolodly and was also provided by TechMagic. He finished the project work on or around June 2022;
e)Mr Yaroslav Kutz was a back end developer, and he had an end date of 12 August 2022. He too was engaged via TechMagic;
f)Mr Oleh Koval was also a back end developer, and he completed his work with the Respondent in February 2022 prior to the Applicant commencing employment;
g)Ms Anna Bilokur-Demochenko was a project manager at the Respondent and in light of the budget cuts in September 2022, the Respondent instructed TechMagic that she was to no longer work on the Respondent’s project as of 30 September 2022;
h)Mr Oleksandr Salamakha was a junior business analyst who assisted on a couple of major projects but scaled down his contribution to the business around 31 May 2022. He had been provided by TechMagic;
Messrs Matt Tyler, Matthew Carter and Chris Howard were engaged to build an internal data stack and dashboarding system. As the Respondent and TechMagic lacked the internal capability for such work, the Respondent contracted with Mechanical Rock who specialised in building that type of infrastructure. The last invoice concerning these workers was provided in May 2022 and they finished up in or around that time;
j)Ms Sarah Kinsella is a graphic designer who would prepare marketing material for the Respondent’s website. Ms Kinsella had her own company and the last invoice the Respondent received from her was around the time that the Applicant left the Respondent on 11 October 2022;
k)Mr Steve Smith is an Australian cricket player who is very famous, and he became a brand ambassador for the Respondent regarding a one-off engagement. He was not paid in cash but received an equity deal;
l)Mr Robin Tang is a front end developer. The Respondent was unable to source front end developers from TechMagic so it engaged QS Studios (for whom Mr Tang works). The last invoice received from QS Studios was on 14 April 2022;
m)Mr Josh Thillagaratnam was the Chief Marketing Officer of the Respondent, but he decided to move on and establish his own consultancy as of 29 May 2022;
n)Mr Oliver Tweddell was an operational team member who assisted with compliance. He finished up with the Respondent on 2 October 2022 due to budget cuts; and
o)Mr Jay Cai left the Respondent company on 2 March 2022 and the Applicant replaced him in his role.
Legislative Provisions
As observed, for a person to be protected from unfair dismissal they must have, among other things, completed a period of employment with their employer which is at least the minimum employment period.[33] Section 383 of the Act sets out the meaning of the minimum employment period as follows:
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer--one year ending at that time.
The meaning of the term ‘small business employer’ is found in s 23 of the Act:
Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.
An associated entity for the purposes of s 23(3) (by virtue of s 12 of the Act) has the meaning given by s 50AAA of the Corporations Act 2001 (Cth) (Corporations Act). Section 50AAA of the Corporations Act provides that:
(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(4) This subsection is satisfied if:
(a) the associate controls the principal; and
(b) the operations, resources or affairs of the principal are material to the associate.
(5) This subsection is satisfied if:
(a) the associate has a qualifying investment (see subsection (8)) in the principal; and
(b) the associate has significant influence over the principal; and
(c) the interest is material to the associate.
(6) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the associate; and
(c) the interest is material to the principal.
(7) This subsection is satisfied if:
(a) an entity (the third entity) controls both the principal and the associate; and
(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.
For the purposes of s 50AAA(2) of the Corporations Act, an entity (the associate) and another entity (the principal) are related bodies corporate if they meet the following definition found in s 50 of that Corporations Act:
Related bodies corporate
Where a body corporate is:
(a) a holding company or another body corporate; or
(b) a subsidiary of another body corporate; or
(c) a subsidiary of a holding company of another body corporate;
the first mentioned body and the other body are related to each other.
Section 50AA of the Corporations Act defines control as follows:
Control
(1) For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity's financial and operating policies.
(2) In determining whether the first entity has this capacity:
(a) the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and
(b) any practice or pattern of behaviour affecting the second entity's financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).
(3) The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity's financial and operating policies.
(4) If the first entity:
(a) has the capacity to influence decisions about the second entity's financial and operating policies; and
(b) is under a legal obligation to exercise that capacity for the benefit of someone other than the first entity's members;
the first entity is taken not to control the second entity.
Consideration
It is uncontroversial that the Parent Company, the Respondent and Bamboo 1 were related entities in accordance with s 50AAA(2) of the Corporations Act and that the count of employees for the purpose of s 23 of the Act should include those employees of the Parent Company, the Respondent and Bamboo 1.
When examining whether an employer has fewer than 15 employees, consideration is given to all employees employed at the particular time. Therefore, consideration must be given to whether a director of a company is considered an employee. For example, a managing director is usually a full-time employee of the company with day-to-day responsibilities.[34] Further consideration extends to whether workers were independent contractors or otherwise provide via a third person or entity.
The common law test for employment was recently confirmed by the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (Personnel Contracting)[35] and ZG Operations Australia Pty Ltd v Jamsek (Jamsek).[36] Those judgments set out that the characterisation of the employment relationship proceeds by reference to the rights and obligations of the parties under the terms of any written agreement between them, where the parties have comprehensively committed the terms of their relationship to a written contract or agreement. In the decision of Nawaz v Raiser Pacific Pty Ltd,[37] some of the principles that now apply in determining whether a relationship is an employment relationship were set out at paragraph [51] of that decision, which are adopted for the purpose of this decision. Some of those principles are extracted as follows:
a) the characterisation of the relationship is to be determined by reference only to the parties’ legal rights and obligations;
b) where a comprehensive written contract is in place, this will be the primary source of the parties’ legal rights and obligations, and these will be decisive of the characterisation of the relationship. This will apply unless the contract is a sham, or has been varied after it was made, or post agreement conduct or context demonstrates the term is legally ineffective;[38]
c) the conduct and expectations of the parties after entering into the contract are not generally relevant to the assessment;[39]
d) the manner in which the relationship is worked in practice may be relevant for certain limited purposes, such as to find contractual terms where they cannot otherwise be ascertained[40] or to determine the nature of any variation to agreed terms;[41]
e) it is permissible to have regard to objective events, circumstances and things external to the contract known to the parties at the time of contracting which assist in identifying the purpose or object of the contract;[42]
f) the relative bargaining power of the parties is not relevant. That is, the fact that the arrangement was brought about by the superior bargaining power of the company has no bearing on the meaning and effect of the contract;[43]
g) the ‘multifactorial’ test remains appropriate; however, it is to be applied by reference to the parties’ legal right and obligations not to the post contract conduct. In that respect, the terms of contract between the parties are not merely ‘factors’ but are determinative.[44] The manner in which the contractual terms address the mode of remuneration, provision of equipment, obligation to work, hours of work, delegation of work, holidays and the right to control may show that it is not an employment contract;[45]
h) whilst all relevant factors require consideration, two factors in particular assist in assessing the ultimate question of whether an applicant was an employee:
i.control: the greater the degree (rights) of control exercisable by the principal/employer over the work performed, the greater the likelihood that an employment relationship existed; and
ii.own business/employer’s business: the resolution of the question whether a person engaged to work for another as an employee or an independent contractor depends upon the extent to which, upon an analysis of the parties’ rights and obligations under the terms of their contract, it can be shown that the person acts in the business of, and under the control and direction of, the other.[46] In this way, one may discern a more cogent and coherent basis for the time-honoured distinction between a contract of service and a contract for services than merely forming an impressionistic and subjective judgment or engaging in the mechanistic counting of ticks on a multifactorial checklist…[47]
At paragraph [10] of this decision, Mr Cassidy clearly elucidates who was working for the Respondent at the time of the Applicant’s notification of his dismissal. I consider that Mr Cassidy provided a forthright and honest account of the relationships the Respondent held with its workers and when those relationships had ended.
Mr Cassidy stated that the following workers were not engaged by the Respondent or were otherwise provided by a third party to the Respondent at the relevant time:
a) Mr Volodomyr Danylko;
b) Mr Romon Kolodyly;
c) Mr Max Brorvsky;
d) Mr Yaroslav Kutz;
e) Mr Oleh Koval;
f) Ms Anna Bilokur-Demochenko;
g) Mr Oleksandr Salamakha;
h) Mr Matt Tyler;
i) Mr Matthew Carter;
j) Mr Chris Howard;
k) Ms Sarah Kinsella;
l) Mr Steve Smith;
m) Mr Robin Tang;
n) Mr Josh Thillagaratnam;
o) Mr Oliver Tweddell; and
p) Mr Jay Cai.
Further, based on the evidence provided, I am not persuaded that Mr Ben Ritchie was an employee of the Respondent, given the Respondent had a CEO and the services provided by Mr Ritchie did not extend to the day to day running of the business but were confined to board-level activities and catch-ups.
In relation to Mr Jim Paleo, there is a written contract between Velsoft Pty Ltd and the Respondent for the services IT Management consulting.[48] It was acknowledged by the Respondent that Mr Paleo did invoice through two different companies (Velsoft Pty Ltd and Coin Republic Pty Ltd) and on that basis submitted that Mr Paleo provided services as a contractor. Having reviewed the direct evidence and considered the submissions and evidence of the Respondent, I have found Mr Paleo to be a contractor based on the material before me.
Concerning Mr Adam Dean, it is evident from the direct evidence that he came to work for the Respondent via The Office (WA) Pty Ltd (ABN 30 643 996 114), which invoiced for his work. Mr Dean was not an employee of the Respondent.[49]
Regarding Oleksandr Horobets, Anastasia Kompaniiets, Bohdana Muzyka, Olha Maksymets, Anton Nazarenko, Victor Kris and Anna Bilokur-Demchenko, it is evident from the direct evidence (Detailed Time Report at page 260 of the Digital Hearing Book) that these workers were provided by TechMagic and were not employees of the Respondent. However, it is observed that Ms Bilokur-Demochenko had provided some services via TechMagic to the Respondent from 12 December to 16 December 2022.
In respect of Ken Alorro and Alyssa Gascon, there is insufficient evidence before me to arrive at a finding that more likely than not they were contractors rather than employees. Whilst invoices have been provided for their services, one invoice appears on ‘Bamboo’ letterhead and both make references to having provided Ken Alorro and Alyssa Gascon with holiday pay.
Considering the totality of the evidence and for the purpose of s 23 of the Act, I find that at the time the Applicant was dismissed, there were eight employees (inclusive of Ken Alorro and Alyssa Gascon). The other employees included:
a) Elliot Lyons;
b) Maria Blomberg;
c) Robert Beer;
d) Tracey Plowman;
e) Blake Cassidy; and
f) the Applicant.
I am satisfied that at the time the Applicant was dismissed, he had served less than a year of continuous service.
Conclusion
I have concluded that the Respondent and its associated entities employed fewer than 15 employees altogether at the time the Applicant was dismissed. It was therefore a small business employer, and the Applicant had not completed the minimum employment period. Accordingly, he was not protected from unfair dismissal when his employment was terminated. For these reasons, the Respondent’s jurisdictional objection is upheld, and the application dismissed. An Order[50] issues concurrently to this effect.
DEPUTY PRESIDENT
Appearances:
C Edwards, Applicant
R Greig for the Respondent
Hearing details:
2023.
Perth (by video):
12 April.
[1] MA000065.
[2] Ibid.
[3] Witness Statement of Blake Cassidy, [4] (Cassidy Statement).
[4] Ibid.
[5] Ibid.
[6] Ibid [44].
[7] Ibid [48], annexure R14.
[8] Ibid.
[9] Ibid [56].
[10] Ibid [9], annexure R1.
[11] Ibid [11], annexure R2.
[12] Ibid [13].
[13] Ibid [14]–[17], annexure R4.
[14] Ibid [15], annexure R3.
[15] Ibid [21]–[22].
[16] Ibid [24]–[25], annexure R6.
[17] Ibid [30]–[31], annexure R7.
[18] Ibid [32], annexure R8.
[19] Ibid [33], annexure R9.
[20] Ibid [36], annexure R10.
[21] Ibid [37], annexure R11.
[22] Ibid [41], annexure R12.
[23] Witness Statement of Chad Edwards, [2] (Edwards Statement).
[24] Ibid [5].
[25] Ibid [4].
[26] Ibid [9]–[10].
[27] Ibid [23]–[24].
[28] Ibid [35]–[36].
[29] Ibid [33]–[34].
[30] Ibid [37].
[31] Ibid [39].
[32] Ibid [40].
[33] Fair Work Act 2009 (Cth) s 382.
[34] van Dreven v Safety Xpress Unit Trust [2017] FWC 4893, [14].
[35] (2022) 96 ALJR 89 (Personnel Contracting).
[36] (2022) 96 ALJR 144 (Jamsek).
[37] (2022) 317 IR 134, 153–5 [51].
[38] Jamsek (n 36) 153–7 [40]–[62] (Kiefel CJ, Keane and Edelman JJ); Personnel Contracting (n 35) 129–31 [172]–[178] (Gordon J).
[39] Jamsek (n 36) 153–7 [40]–[62] (Kiefel CJ, Keane and Edelman JJ); Personnel Contracting (n 35) 129–31 [172]–[178] (Gordon J).
[40] Personnel Contracting (n 35) 104–7 [42], [54] (Kiefel CJ, Keane and Edelman JJ), 130–1, 134–5 [177]–[178], [188]–[190] (Gordon J).
[41] Ibid 105, 107 [46], [54] (Kiefel CJ, Keane and Edelman JJ).
[42] Jamsek (n 36) 156–7 [61] (Kiefel CJ, Keane and Edelman JJ).
[43] Ibid 148, 157 [6], [8], [62] (Kiefel CJ, Keane and Edelman JJ); Personnel Contracting (n 35) 112 [81] (Kiefel CJ, Keane and Edelman JJ).
[44] Personnel Contracting (n 35) [33]–[34], [47], [61] (Kiefel CJ, Keane and Edelman JJ); 129–30, 133–5 [174], [186]–[189] (Gordon J).
[45] Ibid 129–30, 133–5 [174], [186]–[189].
[46] Ibid 109 [62] (Kiefel CJ, Keane and Edelman JJ).
[47] Ibid 104 [39] (Kiefel CJ, Keane and Edelman JJ); Jamsek (n 36) 156 [60] (Kiefel CJ, Keane and Edelman JJ).
[48] Cassidy Statement (n 3) annexure R3.
[49] Ibid [21]–[22].
[50] PR761182.
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