Chaman Ali Akrami v Programmed Skilled Workforce Pty Ltd
[2022] FWC 3015
•14 NOVEMBER 2022
| [2022] FWC 3015 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Chaman Ali Akrami
v
Programmed Skilled Workforce Pty Ltd
(U2022/7846)
| COMMISSIONER P RYAN | SYDNEY, 14 NOVEMBER 2022 |
Application for an unfair dismissal remedy – jurisdictional objection – whether the Applicant served minimum employment period – jurisdictional objection upheld – application dismissed.
Introduction
This decision concerns an application by Mr Chaman Ali Akrami (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act) lodged on 27 July 2022 (Application).
In the Application, the Applicant alleges his employment with Programmed Skilled Workforce Pty Ltd (Respondent) commenced on 28 June 2022 and that he was dismissed on 6 July 2022.
In the employer response to the Application, the Respondent denies that it dismissed the Applicant and objects to the Application on the basis that the Applicant’s period of employment did not meet the minimum employment period.
To be protected from unfair dismissal, a person must have completed a period of employment with their employer of at least the minimum employment period.[1] Further, whether a person is protected from unfair dismissal is a matter that must be determined prior to any consideration of the merits of an application for an unfair dismissal remedy.[2]
The matter was listed for hearing of the Respondent’s jurisdictional objection that the Applicant’s period of employment did not meet the minimum employment period on 11 November 2022. The Applicant represented himself. The Respondent was represented by Ms Donna Godman, a people advisor of the Respondent.
In accordance with directions issued, both parties were given the opportunity to file any witness statements, documentary material and written submissions. The materials filed by the parties were consolidated into a Digital Hearing Book for reference throughout hearing.
For the reasons that follow, I have determined that Mr Akrami has not completed a period of employment of at least the minimum employment period, and therefore, the Application is dismissed.
Factual Background
The factual background is predominantly not in dispute and can be summarised as follows.
On or about 28 August 2021, the Applicant commenced employment with Drake International (Drake), which provides labour hire services throughout Australia.
Drake assigned the Applicant to work as a dock hand at the WooliesX Site at Lidcombe (WooliesX).
The Respondent is a specialist third-party supplier of workplace solutions across various industries throughout Australia and New Zealand, including the provision of labour hire services in the resources, infrastructure, manufacturing and logistics, commercial/retail and tourism markets. It currently employs approximately 15,000 employees.
The Respondent and Drake are not associated or related entities.
On 27 June 2022, and following a competitive tender process, the Respondent commenced supplying labour hire services to WooliesX pursuant to a labour hire agreement.
On 28 June 2022, the Applicant commenced employment with the Respondent and was assigned work at WooliesX.
Over the period of 28 June 2022 to 6 July 2022, the Applicant was assigned a total of five shifts.
On 6 July 2022, the Respondent informed the Applicant that he would no longer be assigned to WooliesX and that it would provide alternative assignments.
Throughout the period of his employment with the Respondent, the Applicant remained ‘on the books’ with Drake and recommenced accepting work through Drake from approximately mid-August 2022.
Respondent’s Submissions
The Respondent submitted that it was awarded the contract to supply labour to WooliesX following a competitive tender process and that there was no transfer of business between the Respondent and Drake, and the Applicant cannot rely on his employment with Drake to satisfy the minimum period of employment.
The Respondent submitted that there was no dispute between the parties that Applicant worked a total of 20 hours over a nine-day period from 28 June 2022 to 6 July 2022.
The Respondent submitted that the Application should be dismissed on the basis that the Applicant has completed the minimum employment period.
Applicant’s Submissions
The Applicant submitted that he had worked at the same site, WooliesX for more than six months and that the cessation of his assignment at that site constituted a dismissal.
The Applicant stated that the Respondent has not provided any further assignments, notwithstanding it agreed to do so on 6 July 2022.
Relevant Legislative Provisions
Section 382 of the Act provides as follows:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
The meaning of “period of employment” is set out at s.384(1) of the Act as follows:
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
The meaning of “minimum employment period” is set out at s.383 of the Act as follows:
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 “service” and “continuous service” is set out at s.22 of the Act as follows:
22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i)a period of absence under Division 8 of Part 2‑2 (which deals with community service leave); or
(ii)a period of stand down underPart 3‑5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii)a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.
Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2‑2
(4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2‑2:
(a) a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:
(i)any period of unauthorised absence; or
(ii)any other period of a kind prescribed by the regulations; and
(b)a period referred to in subparagraph (a)(i) or (ii) does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service; and
(c) subsections (1), (2) and (3) do not apply.
(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.
When service with one employer counts as service with another employer
(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:
(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and
(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer(taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.
(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.
Meaning of transfer of employment etc.
(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:
(a) the following conditions are satisfied:
(i)the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;
(ii)the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or
(b) the following conditions are satisfied:
(i)the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;
(ii)the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.
(8) A transfer of employment:
(a)is a transfer of employment between associated entities if paragraph (7)(a) applies; and
(b)is a transfer of employment between non‑associated entities if paragraph (7)(b) applies.
The meaning of ‘transfer of business’ is set out at s.311 of the Act as follows:
Meanings of transfer of business, old employer, new employer and transferring work
(1)There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).
Meaning of transferring employee
(2)An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.
Transfer of assets from old employer to new employer
(3)There is a connection between the old employer and the new employer if, in accordance with an arrangement between:
(a) the old employer or an associated entity of the old employer; and
(b) the new employer or an associated entity of the new employer;
the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and
(d) that relate to, or are used in connection with, the transferring work.
Old employer outsources work to new employer
(4)There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.
New employer ceases to outsource work to old employer
(5)There is a connection between the old employer and the new employer if:
(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and
(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.
New employer is associated entity of old employer
(6)There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.
Consideration
It is not in dispute that the Applicant’s period of employment with the Respondent was nine days. Therefore, the issue for determination by the Commission is whether the Applicant’s period of employment with Drake counts towards his continuous service with the Respondent.
The Respondent and Drake are not associated entities. Therefore, this matter will turn on whether there was a transfer of business between Drake as the ‘old employer’, and the Respondent as the ‘new employer’. For there to be a transfer of business, each limb under s.311(1) of the Act must be satisfied.
For the following two reasons, I find that there was not a transfer of business between the Respondent and Drake.
First, the Applicant’s employment was not terminated by Drake. The Applicant’s evidence was that he remained ‘on the books’ at Drake throughout his employment with the Respondent. I understand this to mean that the Applicant could have accepted further assignments from Drake during his employment with the Respondent if he chose to do so. Therefore, the requirement in s.311(1)(a) of the Act is not satisfied.
Second, notwithstanding the work the Applicant performed for the Respondent was substantially the same as the work he performed for Drake, there was no ‘connection’ between the Respondent and Drake as required under s.311(1)(d) of the Act. In this respect, it is clear on the evidence before the Commission that:
(i)to the extent that the Respondent owns or has the beneficial use of some or all of the assets that Drake owned or had the beneficial use of, that was not pursuant to an arrangement between Drake and the Respondent.[3] Rather, any arrangement was between WooliesX and the Respondent;[4]
(ii)the work performed by the Applicant for the Respondent was not ‘transferring work’ pursuant to an outsourcing arrangement between Drake and the Respondent, or the cessation of an outsourcing arrangement between those entities;[5] and
(iii)Drake and the Respondent are not associated entities.[6]
Accordingly, the Applicant’s period of employment with Drake does not count towards his continuous service with the Respondent. The Applicant’s period of employment is therefore nine days.
Conclusion
To be protected from unfair dismissal, the Applicant was required to have completed a period of employment of at least six months.
I have found the Applicant’s period of continuous service with the Respondent was nine days.
Accordingly, the Applicant has not completed the minimum employment period as required by s.382(a) and s.383(a) of the Act. Therefore, the Applicant is not a person protected from unfair dismissal.
The Respondent’s jurisdictional objection is upheld. The Application is dismissed. An Order to that effect will be issued with this Decision.
COMMISSIONER
Hearing details:
2022.
Sydney (via Microsoft Teams video-link):
11 November.
[1] See s.382 and s.383 of the Act.
[2] See s.396 of the Act.
[3] See s.311(3) of the Act.
[4] Appeal by John Lucas Hotel Management Services [2013] FWCFB 1198 at [18]-[22].
[5] See ss.311(4)-(5) of the Act.
[6] See ss.22(5), 22(7) and 311(6) of the Act.
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