Charles Heydon v The Highgate Group Pty Limited
[2017] FWC 6151
•22 DECEMBER 2017
| [2017] FWC 6151 |
| FAIR WORK COMMISSION |
| DECISIOn |
Fair Work Act 2009
s.394—Unfair dismissal
Charles Heydon
v
The Highgate Group Pty Limited
(U2017/6816)
| DEPUTY PRESIDENT BOOTH | SYDNEY, 22 DECEMBER 2017 |
Section 394 application for an unfair dismissal remedy – whether small business employer – whether casual employees employed at a particular time – whether casual employees employed on a regular and systematic basis- interim decision
Mr Charles Heydon was the Operations Manager for The Highgate Group Pty Limited (Highgate) from 22 June 2015 to 6 June 2017, when he was summarily dismissed. Mr Heydon has made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy.
Highgate is an adventure construction, maintenance and inspection business. Highgate constructs, maintains and conduct safety inspections of climbing walls, ropes courses and the like. Mr Heydon’s role was responsible for planning and executing construction, maintenance and inspection work for clients of Highgate.
Highgate contends that it is a small business employer. Section 23 of the Act provides that an employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
Highgate submits that Mr Heydon’s dismissal was consistent with the Small Business Fair Dismissal Code,[1] and accordingly, Mr Heydon was not unfairly dismissed.
Mr Heydon disputes that Highgate is a small business employer.
The hearing of the application commenced before me on Tuesday 3 October 2017. Directions were issued for Mr Heydon and Highgate to apply for permission to be represented pursuant to s.596 of the Act by 11 August 2017 and to reply by 18 August 2017. Mr Heydon did not make an application to be represented, but Highgate did. Mr Heydon objected to Highgate being represented.
I granted Highgate’s application and conveyed my decision to the parties by email on 31 August 2017. I granted this application because I considered that ss.596(2)(a) and (b) were enlivened, and it was appropriate to exercise my discretion to allow Highgate to be represented.
I considered that Highgate’s allegation of extortion against Mr Heydon and the relevance of the Work Health and Safety regime to the application created complexity enlivening s.596(2)(a).
I considered that the absence of dedicated Human Resource personnel, the difficulty of Highgate’s Managing Director, Mr Hope, being both advocate and witness and the particular circumstances of the hearing on 3 October 2017, whereby Mr Hope would be giving evidence by phone from Vancouver, Canada, meant that Highgate would not be able to represent itself effectively. This enlivened s.596(2)(b).
In light of this, I considered that it was appropriate to exercise my discretion to grant Highgate’s application. Highgate was represented by Mr Hassall of Sparke Helmore.
Evidence was given by Mr Hope for Highgate on 3 October 2017, but his evidence was not completed. The matter was adjourned until 24 October 2017, when Mr Hope concluded his evidence. Ms Alicia Cherni, Operations Co-ordinator, also gave evidence for Highgate that day.
I decided, and the parties agreed, to initially confine my consideration to the question of whether Highgate was a small business at the time of Mr Heydon’s dismissal. This decision is solely in relation to that question.
The evidence and submissions concerning this question proved to be lengthy and complex. I decided to take this course because it will allow the parties to tailor their cases in relation to the substantive application with reference to the particular tests applicable from the Act.
If I find that Highgate was a small business employer then the parties will need to address themselves to whether Heydon’s dismissal was consistent with the Small Business Fair Dismissal Code[2] and, in particular, whether Highgate believed on reasonable grounds that Mr Heydon’s conduct was sufficiently serious to justify immediate dismissal.
If I find that Highgate was not a small business employer then the parties will need to address themselves to whether Mr Heydon’s dismissal was unfair.[3]
For the reasons outlined below, I have decided that Highgate was a small business at the time of Mr Heydon’s dismissal. In this circumstance, it remains for Highgate to satisfy the Commission that the dismissal was consistent with the Small Business Fair Dismissal Code. Directions will be issued accordingly and the matter is listed for hearing on 21 February 2018.
Highgate’s permission to be represented is maintained for the forthcoming hearing for the reasons outlined above.
The case was conducted on the basis that Highgate employed nine full-time or part-time employees (including Mr Heydon) and one casual employee, Mr Richy Glasgow, whom it regards as regular and systematic.[4]
There were 11 other individuals named by Mr Heydon. He submitted that they were all casual employees employed on a regular and systematic basis, and therefore were to be counted for the purpose of calculating the number of employees pursuant to s.23 of the Act. Highgate submitted that these individuals were casual employees (not independent contractors), but that they should not be counted because none of them was employed on a regular and systematic basis.
Section 23 of the Act is reproduced below:
“23 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.”
Section 23(2) of the Act has two limbs. The first limb is whether an employee was employed by the employer “at that time”. In this case, the particular time is 6 June 2017, the date that the dismissal of Mr Heydon took effect. If this limb is satisfied, then in the case of a casual employee, for that person to be counted, they must have been employed on a regular and systematic basis. This is the second limb.
Highgate conducted its case with an emphasis on the second limb, but I consider that I am obliged to come to a conclusion with regard to both limbs.
The evidence disclosed that Highgate had a number of clients who required construction, maintenance and inspection of adventure installations. Highgate had a practice of supplementing its capability to service these clients by deploying casual employees to carry out the work Highgate was required to do for its clients. Some of these clients were Australian Defence Force establishments and, in these cases, appropriate security clearances were required. Highgate ensured that employees, including casual employees, held the appropriate clearances. Highgate also provided training from time to time and ensured that employees held the appropriate qualifications to use particular equipment.
The way in which the work was organised was that Highgate had a list of casual employees to whom they offered work. A casual employee offered work was not obliged to accept the work. Sometimes, a casual employee would advise Highgate in advance of their unavailability. This was necessary because the casual employees also worked for other employers. Some of them operated their own companies.
The casual employees’ availability and whether they had been booked to perform work was recorded in a spreadsheet document known as the THG Staff Booking Schedule (Staff Booking Schedule).
The evidence in relation to the occasions on which each of the employees worked was drawn from the Staff Booking Schedule, the evidence of Mr Hope, the evidence of Mr Heydon, the evidence of Ms Cherni and payroll records.
Highgate accepted that the Staff Booking Schedule correctly represented the occasions on which each of these employees worked in 2016 and 2017. Mr Hope gave evidence in relation to each of the employees. He was cross-examined concerning the Staff Booking Schedule. In some cases, he was able to elaborate on the nature and purpose of the work undertaken and in others, he was not. In addition, Mr Cherni gave evidence based on pay slips that augmented this evidence. The pay slips and Ms Cherni’s evidence were broadly consistent with the entries in the Staff Booking Schedule. Mr Heydon tendered three of his own witness statements, but was not required for cross-examination.
The deployment of employees to perform work was Ms Cherni’s responsibility. Ms Cherni used the Staff Booking Schedule to record work to be performed, employees’ availability and bookings, amongst other things.
Ms Cherni gave evidence that she was responsible for:
(a)rostering workers for all project work carried out by Highgate, which includes booking in the site visits with our clients, ensuring our team have the appropriate passes/inductions and making travel arrangements
(b)collating materials for the project folder, and
(c)receiving and reviewing all returned paperwork, including formatting client reports and returning the reports (where applicable) to the clients.[5]
She said that her usual approach to the allocation of work was as follows:
“10. … if a casual employee is available for the work, I will offer them the work and ask that they confirm their acceptance. If my first offer is declined or I don't hear back from them, I will then ask another casual that I consider appropriately qualified. Quite often I am required to make a few offers before I get a yes from a suitably qualified casual to perform the work. In those types of situations I end up offering the same project work to a number of different casuals until one of the casuals accepts the work.
By way of example:
(a) For inspections, we need a team of two (excluding playgrounds, or low level obstacle courses- these are one person jobs and as such it is easier to get a yes). The team of two would consist of a lead inspector and an assistant inspector. I will offer the lead role first. Once the lead role has been accepted I will then offer the assistant role which may need to be offered out a few times if declined at first.
(b) Construction jobs are generally for longer periods of time with a team of three. As such, I may need to make a few offers with respect to construction jobs or split the work up into two week blocks. It is not uncommon for me to get a lot of nos before I get a yes.
(c) In circumstances where there's very last minute work (either because someone has had to cancel a job at the last minute or we are running behind on a construction job and need more hands on deck) I will send a group email to all the casuals advising what I'm looking for and asking if anyone is available. Once I have managed to lock in the required person or people, I resend my email telling everyone else that the spot has been filled.
11. I keep a Staff Booking Schedule to keep track of staffing and offerings for project and inspection work. I enter this against the staff member when I think I will offer it to them (light purple), once I have made the offer and I'm waiting to hear back from them (it is orange). If it has been accepted (it changes to green) and if it is declined (it changes to red). The Staff Booking Schedule is not a roster in the sense that it does not require an employee to work at a particular date; it is merely a record of the work that each employee has accepted. The green highlighted cells represent the dates an employee has accepted work and is booked for that work.”
Mr Heydon submitted that the manner in which Highgate organised its workforce was systematic in that it followed a system, method or plan. That system, method or plan was said to be reflected in the Staff Booking Schedule. He concluded, in effect, that the requirement for employment to be “systematic” was met for all casual employees since they were all the subject of the Staff Booking Schedule.
I agree that the Staff Booking Schedule, the way Ms Cherni communicated with casual employees to offer them work and ascertain their availability and engage them to perform the work is a system. However, it is the employment that must be systematic, not the method by which the employer organises the work. I consider that I am required to consider whether each relevant casual employee was employed by Highgate on a regular and systematic basis. I do not accept that due to the use of the Staff Booking Schedule, each of these casual employees could be considered to be employed on a systematic basis.
I will examine the circumstances of each casual employee in contention. In coming to a conclusion about each employee, I have had regard to the summary of the law that informed Commissioner Roe in his oft-quoted decision Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic[6] (Ponce), and the principles stated by him at the conclusion of his consideration at paragraphs 75 to 78 as follows:
“[75] I conclude from this that the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.
[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:
· The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and
· Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.
[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.
[78] If the hours worked over a lengthy period are similar to or exceed that of full-time ordinary hours then this would also be strong evidence that work is being performed when offered and that work is being offered when available at the time parties know this is practical. Hence this would also be evidence of regular and systematic employment.”
Mr Gilbert Meunier
The first employee I will consider is Mr Gilbert Meunier. Mr Meunier was described by Mr Hope as the most senior of Highgate’s casual workforce. In relation to Mr Meunier’s circumstances, Mr Hope said in his Statement:
“(a) Mr Meunier is the most senior of Highgate's casual workforce and, as such, was most likely to be offered work. He was offered work regularly when project work was available.
(b) Mr Meunier did not always accept work offers from Highgate and would often provide Highgate with his unavailable dates in advance so that work would not be offered to him. Highgate was not Mr Meunier's only employer.
(c) Whilst Mr Meunier worked 17 days in May, he only worked 2 days in April, 3 days in March, 8 days in February and 10 days in January. On average he worked less than a full time employee.
(d) Mr Meunier was offered work most weeks, but the amount of work varied. Mr Meunier did not always make himself available to accept the project work.
(e) At no stage did Mr Meunier communicate to me that he had an expectation he would work every week for Highgate or perform set days during the week for Highgate.”[7]
In his statement of 22 September 2017, Mr Heydon stated that Mr Meunier was engaged regularly, often and that his work had the following characteristics:
“a) He was regularly offer [sic] work by Elisha Cherni according to, and his acceptance was recorded in, the Staff Booking Schedule.
b)He is a senior Ropes Access certificate holder.
c)Is listed in the Staff Booking Schedule and the document (working draft rostering spreadsheet) provided by the Respondent as number 1, meaning he is considered a lead.
d)He has specialist high risk and other qualifications; some supplied or assisted by the company. These include non-slewing crane, forklift, rigging.
e)He has specialist supplier qualification, many supplied or assisted by the company (ropes course international trainer and inspector qualifications are example)
f)He has defence Force access passes sponsored by Highgate
g)He is used for specific client tasks as required by the client, Standards or the company
i. Leading construction work
ii. Leading inspections work
iii. RCU inspections and training
iv. CnC inspections and training.”[8]
The evidence was that Mr Meunier worked as follows.
Between 19 January and 24 February 2016, Mr Meunier worked as lead for a “clip and climb” job in Miranda, NSW.[9] After this work, Mr Meunier worked at a job at Sea World, where an RCI inspection was required from 14 to 18 March 2016.[10] Mr Meunier then returned for similar work in Miranda again, doing construction lead work between 21 and 30 March 2016.[11] After this, Mr Meunier was leading an inspection at Lake Ainsworth for two days, on 11 and 12 April 2016.[12] After almost a month of unavailability, as indicated in exhibit CH1, Mr Meunier worked as a construction lead from 17 to 30 April 2016 at Trinity for “clip and climbs”.[13] During cross-examination of Mr Hope, Mr Heydon suggested that Mr Meunier went to a workplace called “Sacred Heart” between 16 May and 3 June 2016; however, this is not reflected in the staff booking schedule, which shows that the period of engagement was between 17 May and 2 June 2016.[14]
On 14 June 2016, Mr Meunier did a single day of RCI inspection work, at AMF Darwin, and it was agreed that this kind of work was of similar nature to the to the work that was done by Mr Meunier at Sea World months prior. It was agreed by Mr Heydon that more inspection work was carried out by Mr Meunier on 24 June 2016 at Lone Pine Barracks and furthermore on 28 and 29 June 2016 at Narrabeen, for a sport and recreation facility. He worked on the very same facility on 6 July 2016 in an unknown capacity.[15] Between 29 August and 3 September 2016, Mr Meunier installed a bowling alley in a café.[16] He went onto work on construction on Ninja Newcastle between 17 and 22 October 2016.[17] On 9 and 10 November 2016, Mr Meunier worked on Williamtown and Singleton. On 24 November 2016, Mr Meunier worked at Tin Can Bay as a Queensland-based inspection lead, similar to the role performed previously at Lone Pine.[18] Mr Meunier’s final jobs for 2016 were Berwick (13-16 December 2016) and PCYC Cessnock (19-22 December 2016).[19] Mr Heydon asserted that the last jobs of the year were also inspection lead jobs.
Mr Meunier performed worked at Virgin NW on 11 and 23 January 2017.[20] From 17 to 20 January 2017, Mr Meunier worked at Amberley Gallipoli.[21] 10 days later, from 30 January to 1 February 2017, Mr Meunier worked at CRRT Holsworthy, with Mr Hope assuming it was an inspection of the Holsworthy tower.[22] More than a week later, on 9 and 10 February 2017, Mr Meunier undertook work at Lithgow TAFE, which Mr Hope thought may have been inspection work.[23] Mr Meunier returned to work at CRRT Holsworthy on 14 February 2017 for three days.[24] On 22 February 2017, he worked at A Maze’N Things.[25] He worked at Sea World on 23 and 24 March 2017.[26] On 27 March 2017, Mr Meunier returned to work at CRRT Holsworthy. A month later, he commenced work again at Amberley. Mr Heydon said that he was an inspection lead, as he was on previous occasions.[27] From 1 to 3 May 2017, Mr Meunier worked at Lake Ainsworth as an inspection lead, Mr Heydon said that this was the exact type of work performed by Mr Meunier a year before.[28] On 5 and 6 May 2017, Mr Meunier worked at Virgin Active East Village, where Mr Hope stated he could have been performing inspections, maintenance, report writing or any of the above.[29] Nine days later, Mr Meunier worked at CNC Moorabbin.[30] Mr Meunier was building a “clip and climb” in Williamtown between 22 May and 10 June 2017.[31]
Ms Cherni told the Commission that when work on climbing walls was available in Western Australia, Mr Meunier was the worker who would receive the work.[32]
Highgate concedes that Mr Meunier’s employment is regular. In Richard Hope’s statement dated 31 August 2017, Mr Hope states that:
“As at 6 June 2017, there were three casual staff who Highgate engaged on a regular basis when project work was available. These casual staff were Richy Glasgow, Gilbert Meunier and Tony Williams.”[33]
I find that Mr Meunier was employed at 6 June 2017 and he was employed on a regular and systematic basis. I consider that the duration and incidence of Mr Meunier’s work weighs in favour of his work being considered regular and systematic. In Commissioner Roe’s words, work was offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.
Mr Meunier should be included in the number of employees for the purpose of considering whether Highgate is a small business employer.
Mr Tony Williams
The next employee I will consider is Mr Tony Williams.
Mr Williams was described by Mr Hope as follows:
“(a) Mr Williams only performed inspection of the Hangar 585 at the Williamtown Airbase NSW. This work was regularly scheduled.
(b) Mr Williams otherwise did not accept work offers. He runs his own company.
(c) Mr Williams did not work the equivalent hours of full time employee and between 1 January 2017 and 6 June 2017 had only performed work on 6 days.
(d) Highgate did not offer Mr Williams work each week nor had it generally offered work to Mr Williams each week over a lengthy period.
(e) At no stage did Mr Williams communicate to me that he had an expectation he would work particular days during the week or a conventional number of days per week for Highgate.”[34]
Mr Williams was described by Mr Heydon as follows:
“Tony Williams’ employment with Highgate has the following characteristics
a)He was regularly offered work by Elisha Cherni according to, and his acceptance was recorded in, the Staff Book Schedule
b)He is a ropes access certificate holder
c)He is listed in the in the Staff Booking Schedule and the document (“working draft rostering spreadsheet”) provided by the respondent as a number 1 meaning he is considered a lead
d)He has specialist high risk and other qualifications; plus others, some supplied or assisted by the company. These include aircraft fitting experience
e)He is used invariably on specific client tasks as required by the standards or (sic) the company (Hanger 585 at RAAF Williamtown)
f)He has Defence Force Access passes sponsored by Highgate
Mr Williams works as a fitness instructor/personal trainer as well as the work he does for Highgate. Mr Williams is only engaged to work at Hanger 585 at Williamtown Airbase NSW. That base has work conducted on it by Highgate twice each year for 2 days on each occasion, i.e. no more than 4 days per calendar year.”[35]
When questioned by Mr Heydon, Mr Hope agreed that Mr Williams was a regular employee in the sense that he did one project a year.[36] It was established that Mr Williams worked on 6, 7, 21 and 22 March 2016 at Hangar 585 of Williamtown Airbase.[37] Mr Williams also worked at the same workplace on 5 and 6 June 2017.[38] Mr Hope also stated that Mr Williams:
“… works on a specific site is because he has a specific set of skills that we have to have for that site… If he wasn’t available then the work would be rescheduled to when he was available.”[39]
Highgate concedes that Mr Williams’ employment is regular.[40] It is evident that it is infrequent in that he is deployed for a certain task on an annual basis, due to his particular skills.
I find that Mr Williams was a casual employee employed at 6 June 2017, because he worked on 5-6 June 2017. I find that he was not employed on a regular and systematic basis. Commissioner Roe said in Ponce that:
“if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic.”
Mr Williams’ employment was episodic. The gaps between days and times worked were long and the amount of work was small. This weighs against him being considered to be employed on a regular and systematic basis. There was no other evidence that satisfied me that that the employment was regular and systematic.
Mr Williams should not be included in the number of employees for the purpose of considering whether Highgate is a small business employer.
Mr Jaime Bohm
The next employee I will consider is Mr Jaime Bohm.
Mr Bohm was described by Mr Hope as follows:
“(a) Mr Bohm was not offered work regularly.
(b) Highgate had little expectation that Mr Bohm would accept employment offers because he frequently did not make himself available for the work that was offered to him by Highgate.
(c) In 2017, Mr Bohm's did not work the equivalent hours of a full time employee. The number of hours worked fluctuated week to week. As at 6 June 2017, Mr Bohm worked 12 days in January, 3 days in February, 7 days in March, 7 days in April, 9 days in May and 4 days in June for Highgate.
(d) Highgate did not offer Mr Bohm work each week and nor had it generally offered work to Mr Bohm each week over a 17 month period.
(e) Mr Bohm did not work as part of a regular crew. At no stage did Mr Bohm communicate to me that he had an expectation he would work particular days during the week or a conventional number of days per week.”[41]
Mr Bohm was described by Mr Heydon as follows:
“[Mr Bohm] is engaged regularly and often (38 days Jan – May 2017 and 4 days to 6th of June as acknowledged by the respondent) on particular inspection jobs and was scheduled to manage the Williamstown job from 13th of June and undertake company sponsored fork lift licence at the time of my dismissal. Jaime;
a)Was regularly offered work by Elisha Cherni according to, and his acceptance was recorded in, the Staff Book Schedule
b)Is listed in the in the Staff Booking Schedule and the document (“working draft rostering spreadsheet”) provided by the respondent as a number 1/2 meaning he is considered a lead and works as a second on some jobs such as Hanger 585
c)He is a ropes access certificate holder
d)Has specialist high risk and other qualifications, some supplied or assisted by the company. These include ACT Asbestos Awareness forklift driver,(sic)
e)Is used on specific client tasks as required by the Standards or the company (Hangar 585 at RAAF Williamtown, WA Sport and Rec, ADFA, RMC, AFP Majura, QLD defence bases)
f)Has Defence Force access passes sponsored by the respondent’s company.
g)Is used for specific client tasks as required by the standards or the company
i. Leading construction work
ii. General inspection
iii. Inspections at Sport and Rec WA, QLD defence bases.”[42]
The evidence was that Mr Bohm worked as follows.
Between 9 and 21 January 2016, Mr Bohm worked on a project (with Mr Plim) known as WA Sport and Recreation.[43] Mr Bohm was engaged at the same work place at a similar time the next calendar year.[44] Mr Heydon submitted that this work was a series of jobs over a period of two weeks, where school camp facilities such as high rope courses are “worked on and remediated if required.”[45] Mr Hope went onto explain that the nature of the work included inspecting rope courses, flying fox, zip lines, climbing walls, low ropes courses and other indoor facilities that maybe in a gymnasium.[46] Mr Hope confirmed with the Commission that this type or work was regular, twice a year for that period of time.[47] However, he said that the nature of organising the work is haphazard, as there other projects on during that period of time and there is need to “juggle” staff. He went onto say that the people used were not always the same, “they’re offered the work but they are not always available... so it’s not regular and it’s not systematic.”[48] Mr Heydon suggested that Mr Bohm had specific knowledge and a relationship with the WA Sport and Recreation sites. However, Mr Hope denied this, claiming that a “ropes course is a ropes course, and a climbing wall is a climbing wall”,[49] such there were a range of people that had intimate knowledge of the kind of product offered at WA Sport and Rec sites.
Mr Bohm’s next engagement was on 6 and 7 March 2017 at Williamtown Airbase (Hangar 585).[50] Mr Heydon put it to Mr Hope that Mr Bohm was a consistent and regular worker at Hangar 585, working there previously on 21-22 March[51] and 27-28 June 2016.[52] Mr Hope was unable to confirm this, as exhibit CH4, the Staff Booking Schedule for 2016, was illegible.
Mr Bohm worked at Kokoda, on 8 February 2017.[53] His next engagement was at the Australian Defence Force Academy (ADFA) on 13-14 March 2017.[54] Mr Heydon asserts and Mr Hope agreed that Mr Bohm had the appropriate skills, ACT asbestos awareness tickets and Defence Force passes to work on those sites.[55] On 3 and 4 June 2017, Mr Bohm worked on installing a “clip and climb” project, using a forklift.[56] Mr Heydon asked whether Mr Bohm had the relevant license provided by the respondent to operate a forklift. Mr Hope was unable to confirm or deny this.[57]
Mr Hope says that Mr Bohm’s pattern of employment was unpredictable. [58] Whilst Mr Bohm’s employment was more frequent than Mr Williams, it was not as frequent as Mr Meunier’s.
Whilst Mr Bohm was not working on 6 June 2017, I find that he was employed at 6 June 2017. In addressing the question of whether casual employees should have be included in a vote for an enterprise agreement, the Full Bench in McDermott Australia Pty Ltd
v The Australian Workers’ Union, & The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union said:
“In our view it would be inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work on the day/s of the vote, or during the 7 day access period. There are obvious implications for voting manipulation adopting this approach. Swinburne is not authority for the proposition that a casual employee is only ‘employed at the time’ they are rostered to work and are being paid. Swinburne eschewed the proposition that employed at the time included ‘usually employed’.”[59]
I find that Mr Bohm was employed at 6 June 2017 on a regular and systematic basis. I consider that the duration and incidence of Mr Bohm’s work weighs in favour of his work being considered regular and systematic.
Mr Bohm should be included in the number of employees for the purpose of considering whether Highgate is a small business employer.
Mr Nic Plim
The next employee I will consider is Mr Nic Plim.
Mr Plim was described by Mr Hope as follows:
“(a) Mr Plim was not offered work regularly.
(b) Mr Plim was not expected to accept employment offers as he often declined work when offered. Mr Plim would also advise Highgate of his unavailability to accept work prior to receiving any offers. On occasions where Mr Plim was available to perform work for Highgate, he would work on lengthier projects which would run for a week or more.
(c) Mr Plim's total hours worked per week on average were not similar to the total ordinary hours that would be expected of a full time employee. Mr Plim worked 15 days in January, 7 days in February, 5 days in March, 5 days in April and 3 days in May for Highgate.
(d) Highgate did not offer Mr Plim work each week nor had it generally offered work to Mr Plim each week over a 17 month period.
(e) Mr Plim did not work as part of a regular crew. At no stage was it communicated to me, nor did Mr Plim communicate to me that he had an expectation he would work during the week or a conventional number of days per week. There was no pattern to his engagement with Highgate.”[60]
Mr Plim was described by Mr Heydon as follows:
“[Mr Plim] is engaged regularly and often (35 days Jan – June 2017) as acknowledged by the respondent. Was due to have a baby on 9th June so had indicated he was only available for local work from 1st June 2017 and was scheduled for leave from the 9th of June 2017, and Nic;
a)Was regularly offered work by Elisha Cherni according to, and his acceptance was recorded in, the Staff Booking Schedule.
b)Is a senior ropes access certificate holder
c)Is listed in the Staff Booking Schedule and the document provided by the respondent as a number ½ meaning he is considered a lead and will work as a second on some jobs such as ADFA
d)Has specialist high risk and other qualifications, some supplied or assisted by the company (ropes course international trainer and inspector qualifications are an example)
e)Has defence force access passes sponsored by the respondents’ company
f)Is used for specific client tasks as required by the standards or (sic) the company
i. Leading construction work (Ninja Miranda, ALH)
ii. CnC inspections and training
iii. Inspections and remedial works at Sport and Rec WA.”[61]
Mr Plim worked on a series of WA Sport and Recreation jobs for 12 days commencing on 9 January 2016.[62] Mr Heydon asserted that Mr Plim attended a training course in Berwick for Ropes Course International inspection work during 2016.[63] He said that Mr Plim worked on the RCI course at A Maze’N Things in 2017. The evidence shows that Mr Plim only worked one day at A Maze’N Things in 2017, on 22 February 2017. Mr Heydon and Mr Hope agreed that Mr Plim worked at ADFA in mid-March 2017.[64] However, I note that this conflicts with evidence provided in the Staff Booking Schedule.[65]
Mr Hope said in his first statement that Mr Plim works frequently if available however he also “knocks back” work when offered or advises before being offered that he is unavailable.[66] Mr Plim’s employment incidence was similar to Mr Bohm’s, and they sometimes worked together.[67]
Whilst Mr Plim was not working on 6 June 2017, I find that he was employed at 6 June 2017 for the same reasoning as for Mr Bohm. I find that he was employed on a regular and systematic basis. As with Mr Bohm, I consider that the duration and incidence of Mr Plim’s work weighs in favour of his work being considered regular and systematic.
Mr Plim should be included in the number of employees for the purpose of considering whether Highgate is a small business employer.
Mr Shane Couper
The next employee I will consider is Mr Shane Couper.
Mr Hope said in his first statement that Mr Couper works frequently; he worked in the field on three days in January, three days in February, six days in March and one day in May 2017, and undertakes Smart Belay servicing for the business on an ad-hoc basis, but often knocks back work when offered or is unavailable to work.[68]
Mr Couper was described by Mr Hope as follows:
“(a) Mr Couper was not offered work regularly.
(b) Mr Couper could not be expected to accept employment offers. Mr Couper often declined work when offered.
(c) Mr Couper's total hours worked per week for Highgate were not similar to the total ordinary hours that would be expected of a full time employee. Mr Couper worked in the Field team 3 days in January, 3 days in February, 6 days in March, 4 days in April and 1 day in May. As at 6 June 2017, Mr Couper also undertook Smart Belay servicing for Highgate on an ad-hoc basis.
(d) Highgate did not offer Mr Couper work each week nor had it generally offered work to Mr Couper each week over a 17 month period.
(e) While Mr Couper performed work, he was not working as part of a regular crew and at no stage did Mr Couper communicate to me that he had an expectation he would be working set days or hours during the week as part of the team. There was no pattern to his engagement with Highgate.”[69]
Mr Couper was described by Mr Heydon as follows:
“[Mr Couper] is engaged regularly and often. (13 days Jan-May 2017, not counting smart belay servicing as acknowledged by the respondent) Is used to conduct inspections and performed all the smart belay servicing on a regular basis as required by clients or standards. At the time of my dismissal had been in a hiatus from accepting inspections work on the basis of completing renovations on his house, but despite that inspection hiatus continued to perform his duties in relation to smart belay service work. Service work undertaken by Mr Couper is in addition to the work described by the respondent in his evidence of 1st September 2017. Shane;
a)Was regularly offered work by Elisha Cherni according to, and his acceptance was recorded in, the Staff Booking Schedule.
b)He was offered and accepted work as a Service Manager by Helen Legros and his acceptance recorded in Helen’s service management spreadsheet.
c)Had a server based Highgate e-mail address
d)Is a senior Ropes Access certificate holder ( recertified in late Feb or March 2017)
e)Is listed in the Staff Booking Schedule and the document provided by the respondent as a number 1/2 meaning he is considered a lead and will work as a second on some jobs. such as (sic)
f)Is described by Highgate as a “Service Manager” and listed in the staff booking schedule by the products (exclusive to Highgate) whose service he attends to. (Edelrid Smart Belay).
g)Has specialist high risk and other qualifications, some supplied or assisted by the company. These include ACT Asbestos Awareness, Ropes Access.
h)Has specialist supplier qualifications, many supplied or assisted by the company (Edelrid smart belay service, testing and rectification and RCI inspection are examples)
i)Has Defence Force access passes sponsored by Highgate
j)Is used for specific client tasks as required by the standards or the company
i.Leading inspection work ADFA, RMC, AFP Majura, Berry Sport and Rec and WA schools, camps and Sport and Rec”[70]
Mr Hope agreed that Mr Couper was a level 2 inspector and that he may have lead some inspection work at the Department of Sport and Recreation in Berri on 23 January 2017.[71] Mr Couper had appropriate skills and applicable passes to work at ADFA on 13 and 14 March 2017, and he completed the work with and had the same tickets/passes as Mr Bohm.[72] Mr Couper then went onto service Smart Belays on 16 and 17 March 2017, did the same job on another occasion between 12 and 13 April and attended training for the servicing of belays on 22 May 2017.[73] Mr Heydon asserted and Mr Hope agreed that the manufacturer of Smart Belays recommends they are serviced annually, which includes checking, part replacement and re-certification.[74]
I find that Mr Couper was employed by Highgate at 6 June 2017. He worked a total of 17 days in 2017 over five occasions. I do not consider this quantum of work to constitute employment on a regular and systematic basis.
Mr Couper should not be included in the number of employees for the purpose of considering whether Highgate is a small business employer.
Ms Julie McVie
The next employee I will consider is Ms Julie McVie.
Mr Hope said in his first statement that Ms McVie “performed work for Highgate occasionally (a couple of days [in] January and March 2017)”.[75]
Ms McVie was described by Mr Hope as follows:
“[She] (a) was not offered work regularly.
(b) was not expected to accept employment offers.
(c) as at 6 June 2017 had only worked 2 days in January and 1 day in March for Highgate.
(d) had not been offered work each week over a 17 month period.
(e) did not work as part of a regular crew.
(f) did not communicate to me that she had any expectation she would work particular days with a crew for Highgate.”[76]
Mr Heydon described Ms McVie as follows:
“Partner of Gil, works for NSW Fire Service, qualified as RCI inspector, did regular RCI inspections with Gil. These were scheduled to fit in with her NSW Fire Service breaks. Julie
a)Was regularly offered work by Elisha Cherni according to, and her acceptance was recorded in, the Staff Booking Schedule
b)Is a Ropes Access certificate holder
c)Is listed in the Staff Booking Schedule and the document provided by the respondent as a number 2 meaning [he] is considered a second
d)Has specialist supplier qualifications, many supplied or assisted by the company (Ropes Course International trainer and inspector qualifications are an example)
e)Is used for specific client tasks as required by the standards or the company
i. RCI inspections and training, AMF Darwin”[77]
During the hearing, Mr Heydon asked Mr Hope whether Ms McVie worked regular jobs at AMF in Darwin and other RCI jobs.[78] Mr Hope made it clear he did not know, but from looking at the Staff Booking Schedule and not personally knowing Ms McVie, he was satisfied that she was not regular and systematic.[79] Annexure B to the statement of Ms Cherni[80] makes it clear that Ms McVie had only received four weekly pay invoices over an 18-month period.[81]
I find that Ms McVie was not employed by Highgate at 6 June 2017. She worked a total of three days in 2017. This points to her engagements being stand-alone casual engagements. Even if she could be considered to be employed, she was certainly not employed on a regular and systematic basis.
Ms McVie should not be included in the number of employees for the purpose of considering whether Highgate is a small business employer.
Mr Jacob Rice
The next employee I will consider is Mr Jacob Rice.
Mr Hope said in his first statement that Mr Rice “had performed three days’ work for Highgate as at 6 June 2017 (1 day in April, 2 days in May)”.[82]
Mr Rice was described by Mr Hope as follows:
“(a) Mr Rice was not offered work regularly.
(b) Mr Rice was not expected to accept employment offers.
(c) In 2017, and as at 6 June 2017, Mr Rice had only performed three days' work for Highgate.
(d) Mr Rice could not be expected to be offered work each week and had not been offered work each week over a lengthy period.
(e) Mr Rice did not work as part of a regular crew. At no stage did Mr Rice communicate to me that had an expectation he would work particular days with a crew for Highgate.”[83]
Mr Heydon described Mr Rice as follows:
“Resident in Melbourne and is engaged regularly. He took inspections work and remedial on CnC projects when available in Melbourne or Victoria. Was scheduled to work on the Williamstown site from the 13th June 2017 and had agreed to be trained as a install manager for the Cowes job at the time of my dismissal. Jacob;
a)Was regularly offered work by Elisha Cherni according to, and his acceptance was recorded in, the Staff Booking Schedule.
b)Is a senior Ropes Access certificate holder
c)Is listed in the Staff Booking Schedule and the document provided by the respondent as a number 2 meaning he is considered a second
d)Has specialist high risk and other qualifications,
e)Has specialist supplier qualifications, many supplied or assisted by the company (Ropes Course International trainer and inspector qualifications are an example)
f)Is used for specific client tasks as required by the standards or the company
i.Scheduled to Lead Construction work at Cowes at the time of my dismissal
ii.RCI inspections and training for Victorian sites
iii.CnC inspections and training for Victorian sites”[84]
Mr Heydon asked Mr Hope whether Mr Rice had worked one day in April 2017 and two days in May 2017.[85] Mr Hope did not know if this was correct or not; however, on my reading of the Staff Booking Schedule, this is correct.[86] Ms Cherni’s statement detailed that Mr Rice only worked 12.5 hours in May 2017 and eight hours in April 2017.[87] I can see in annexure B to Ms Cherni’s statement that Mr Rice worked anywhere between 11.5 hours to 53 hours per month between January and April 2016. For the remainder of 2016, Mr Rice worked for a total of seven hours and 12 minutes.[88]
I find that Mr Rice was not employed by Highgate at 6 June 2017. He worked a total of three days in 2017. This points to his engagements being stand-alone casual engagements. Even if he could be considered to be employed, he was certainly not employed on a regular and systematic basis.
Mr Rice should not be included in the number of employees for the purpose of considering whether Highgate is a small business employer.
Mr Michael Staszak
The next employee I will consider is Mr Michael Staszak.
Mr Hope said in his first statement that Mr Staszak occasionally performs work for Highgate when mutually available. However, the work performed was not regular or in any particular pattern. For example, in 2017, he had undertaken four days’ work in February, two days in April and one day in May.[89]
Mr Staszak was described by Mr Hope as follows:
“(a) Mr Stazac [sic] was not offered work regularly.
(b) Mr Stazac could not be expected to accept employment offers. Mr Stazac would only accept offers to work for Highgate when he was available.
(c) Mr Stazac's total hours worked per week for Highgate were not similar to the total ordinary hours that would be expected of a full time employee. As at 6 June 2017 Mr Stazac had only worked 4 days in February, 2 days in April and 1 day in May for Highgate.
(d) Highgate did not offer Mr Stazac work each week nor had it generally offered work to Mr Stazac each week over a lengthy period.
(e) Mr Stazac did not work as part of a regular crew. At no stage did Mr Stazac communicate to me that he had an expectation he would work particular days during the week for Highgate. As at 6 June 2017, his engagements with Highgate were infrequent and without pattern.”[90]
The evidence was that Mr Staszak worked as follows.
“[Mr Staszak] is engaged regularly, (8 days up until May). Was only able to work locally and on later two days of each week due to child care commitments, when work was available of that type he was regularly offered and took it. Michael;
a)Was regularly offered work by Elisha Cherni according to, and his acceptance was recorded in, the Staff Booking Schedule.
b)Is a ropes access certificate holder.
c)Is listed in the Staff Booking Schedule and the document provided by the respondent as a number 2 meaning he will work as a second on jobs.
d)Has specialist high risk and other qualifications, some supplied or assisted by the company.”[91]
Mr Staszak worked 14.5 hours in April 2017 and 9.5 hours in May 2017.[92] The evidence points out that Mr Staszak worked a variety of different hours, the most in January 2016, with 32 hours and 30 minutes worked. He did not work at all for eight months from the beginning of 2016.[93]
I find that Mr Staszak was not employed by Highgate at 6 June 2017. Even if he was considered to be employed at the time of Mr Heydon’s dismissal, the duration and incidence of his engagements were too low to be considered regular and systematic.
Mr Staszak should not be included in the number of employees for the purpose of considering whether Highgate is a small business employer.
Mr Mic Rofe
The next employee I will consider is Mr Mic Rofe.
Mr Hope said in his first statement that Mr Rofe worked sporadically and frequently knocked back offers of work.[94]
Mr Rofe was described by Mr Hope as follows:
“[He] (a) was not offered work regularly.
(b) could not be expected to accept employment offers and frequently declined offers of work by Highgate. He was unavailable for all work in March and 23 of 30 days in April.
(c) worked sporadically for Highgate including 3 days in January, 2 days in February, 2 days in April and 12 days in May. As at 6 June 2017, he had worked 4 days in June. In the lead up to Mr Heydon's dismissal Mr Rofe had worked for two consecutive weeks however, this was due to the fact he was booked to perform work at the Williamstown site, which was a lengthy project.
(d) was not offered work each week and had not been offered work each week over a lengthy period.
(e) did not work as part of a regular crew. At no stage was it communicated to me, nor did Mr Rofe communicate to me that he had an expectation he would work particular days with a crew for Highgate.”[95]
The evidence was that Mr Rofe worked as follows:
“[Mr Rofe is] relatively new to the casual team, and was working at the Williamstown site with Gil Meunier for 3 weeks. He also worked for an extended period on the Ninja Parq Cooks Hill. Mic;
a)Is listed in the Staff Booking Schedule and the document provided by the respondent as a number 2 meaning he is considered a second
b)Has specialist high risk and other qualifications (EWP).”[96]
Mr Heydon submitted that Mr Rofe worked on 3 January 2017 inspecting ropes, climbing walls and zip lines at the Department of Sport and Recreation in Berri. Mr Hassall submitted that Mr Rofe was only engaged for seven months in 2016, and was engaged for a total of eight weeks’ work over a 23-week period in 2017.[97]
I find that Mr Rofe was employed by Highgate at 6 June 2017, but the duration and incidence of his engagements were too low to be considered regular and systematic.
Mr Rofe should not be included in the number of employees for the purpose of considering whether Highgate is a small business employer.
Mr Brendan Hemlich
The next employee I will consider is Mr Brendan Hemlich.
Mr Hope said in his first statement that in 2017, Mr Hemlich had only worked two days (in April) for Highgate.[98]
Mr Hemlich was described by Mr Hope as follows:
“(a) Mr Hemlich was not offered work regularly.
(b) Mr Hemlich could not be expected to accept employment offers.
(c) As at 6 June 2017, Mr Hemlich only worked two days in April for Highgate.
(d) Mr Hemlich could not be expected to be offered work each week and had not been offered work each week over a lengthy period.
(e) Mr Hemlich did not work as part of a regular crew. At no stage did Mr Hemlich communicate to me that he had an expectation he would work particular days with a crew for Highgate.”[99]
Mr Hemlich was described by Mr Heydon as follows:
“(Mr Hemlich) is a licenced Carpenter and TAFE teacher. Had recently lost High Ropes Certification, was regularly used for carpentry work (from EWP) when such work was available and his TAFE roster allowed. Brendan;
a)Was regularly offered work by Elisha Cherni according to, and his acceptance was recorded in, the Staff Booking Schedule.
b)Is listed in the Staff Booking Schedule and the document provided by the respondent as a number 2 meaning he is considered a second
c)Has specialist high risk and other qualifications, EWP.( Elevated Work Platform)
d)Is used for specific client tasks as required by the standards or the company
i. Lead Construction work on the Miranda Ninja job and remedial
ii. Worked on inspections as number 2
iii. Used as a Carpenter where NSW carpentry was required, on Miranda CNC, Miranda Ninja, PCYC, Skyzone Alexandria, CnC Berwick”[100]
Mr Heydon put it to Mr Hope that Mr Hemlich was a carpenter, and that he built carpentry items such as a running wall and angled steps at Miranda Ninja in April, May and June 2016.[101] Mr Hope could not confirm this, but said he thought that the angled steps were a product of a third-party supplier, and were only assembled by Highgate staff.[102] Having considered the evidence available, I can see that Mr Hemlich worked the following dates: 18-21 April, 2-4 and 9-27 May and 1-3 June 2016.[103] However, I am unsure what Mr Hemlich was doing on those dates, due to the illegibility of much of exhibit CH4. Mr Hope did confirm that Mr Hemlich worked on 10 April 2017 at the Airforce Base in Richmond, NSW. Mr Heydon put it to Mr Hope that Mr Hemlich was working on a dog training course; however, Mr Hope did not know what type of work was undertaken.[104] Mr Hassall submitted that in 2016, Mr Hemlich only had 11 weekly pay periods; in 2017, he had only been engaged in one month for a total of 20 hours and 30 minutes.[105]
I find that Mr Hemlich was not employed by Highgate at 6 June 2017. He has only worked on one project for 20 hours and 30 minutes in 2017. This is more indicative of a single casual engagement than an ongoing employment relationship. In any event, his employment could not be said to be regular and systematic in light of its single occurrence and short duration.
Mr Hemlich should not be included in the number of employees for the purpose of considering whether Highgate is a small business employer.
Mr Warwick Beard
The final employee I will consider is Mr Warwick Beard.
Mr Hope said in his first statement that Mr Beard performs ad-hoc small tasks.[106]
Mr Beard was described by Mr Hope as follows:
“[He] (a) was not offered work regularly.
(b) often was unavailable to accept work and had during early 2017 (before 6 June 2017) had ceased splicing due to fitness to work.
(c) had a total hours worked for Highgate less than a full time employee. Mr Beard would only perform ad-hoc small tasks for Highgate such as deliveries.
(d) had not been offered work each week over a lengthy period. Mr Beard would only be offered work by Highgate when a small impromptu task was required to be performed.
(e) did not work as part of a regular crew and at no stage did Mr Beard communicate to me that he had an expectation he would work particular days for Highgate.”[107]
Mr Heydon described Mr Beard as follows:
“Warwick had manufacturing responsibilities for the company. He worked most weeks doing regular odd jobs and small tasks for Richard, Niki and the operations team.
His tasks included
i.Manufacturing the respondent company’s proprietary holds for all jobs
ii.Cataloguing the return of tools and equipment from jobs and recording them for Paige Trevena in the Tools Register and Stock Register
iii.Research of and sourcing special materials and product for jobs
iv.Attended the Highgate storage facility in Warriewood most Tuesday mornings for the purpose of the above
v.Performs janitorial work
vi.Construct small items and various ropes and nets for projects”[108]
Mr Heydon included in his statement that Mr Beard manufactured “holds” for all the company’s projects, which included; Sydney Grammar school, Ninja Cooks Hill, Trinity College WA, Sacred Heart College WA, Miranda Ninja stage 2, and Miranda Ninja stage 1. Mr Heydon said that Mr Beard also made “ropes, nets or small items” for the following projects: Genesis Gyms / Highgate trade show exhibit, Ninja Cooks Hill, Miranda Ninja stage 2, and Miranda Ninja stage 1.[109]
Mr Hassall told the Commission that there were only 10 occasions in 2016 and no occasions in 2017 when Mr Beard worked more than 10 hours in a weekly pay cycle. However, Mr Hassall did concede that Mr Beard was more regularly engaged than Mr Hemlich.[110]
An examination of annexure B to Ms Cherni’s statement discloses that Mr Beard consistently works for three- or four-hour engagements each week. In 2016, he was engaged every week but one, and in 2017, he was engaged every week up to May 2017, except in February 2017. Mr Beard did not work in May or June 2017[111]
Notwithstanding that he did not work in June 2017 I find that Mr Beard was employed at 6 June 2017 for the same reasons as Mr Bohm and Mr Plim. The pattern of his work was regular and although his engagements were short, they were frequent. As such, I find that his employment was regular and systematic.
Mr Beard should be included in the number of employees for the purpose of considering whether Highgate is a small business employer.
I note that Mr Hope referred in his first statement[112] to seven other employees who he described as being “engaged… from time to time on an irregular basis”: Mr Felipe Rzende, Mr Tully Allsop, Mr Tim Jardine, Mr Tom O’Hallaran, Mr Tim Fredrickson, Mr Mathew Hewlett and Mr Justin Baxter. As Mr Heydon did not contend that these employees should be included in the head count for the purposes of determining whether Highgate is a small business, I do not propose to consider their circumstances.
Taking into account the 10 employees that it is agreed should be counted, I find that 4 casual employees were employed by Highgate at 6 June 2017 who should be counted for the purpose of s.23 of the Act. Therefore Highgate had 14 relevant employees at the time of Mr Heydon’s dismissal.
Accordingly, I find that Highgate employed fewer than 15 employees at the time of Mr Heydon’s dismissal. Therefore, Highgate is a small business employer and the Small Business Fair Dismissal Code applies to Mr Heydon’s dismissal.
In this circumstance, it remains for Highgate to satisfy the Commission that the dismissal was consistent with the Small Business Fair Dismissal Code. Directions will be issued to allow the parties the opportunity to file and serve any material additional to that which was filed at the outset of the matter. The matter is listed for hearing on 21 February 2018.
DEPUTY PRESIDENT
Appearances:
Mr C Heydon, self-represented.
Mr R Hassall, solicitor, for the Respondent.
Hearing details:
2017.
Sydney:
October 3, 24.
[1] Fair Work Act 2009 (Cth) ss. 385, 388.
[2] Fair Work Act 2009 (Cth) ss. 385, 388.
[3] Fair Work Act 2009 (Cth) s.387.
[4] Exhibit H1 [4]; transcript PN110.
[5] Exhibit H4 [3].
[6] [2010] FWA 2078.
[7] Exhibit H3 [5].
[8] Exhibit CH6 [15].
[9] Transcript PN1183.
[10] Transcript PN1185.
[11] Transcript PN1188.
[12] Transcript PN1190.
[13] Transcript PN1193.
[14] Transcript PN1195.
[15] Transcript PN1211.
[16] Transcript PN1215.
[17] Transcript PN1227.
[18] Transcript PN1226.
[19] Transcript PN1234.
[20] Exhibit CH3 clarifies transcript PN1227-1230.
[21] Transcript PN1246.
[22] Transcript PN1249.
[23] Transcript PN1254-1255.
[24] Transcript PN1256.
[25] Transcript PN1259.
[26] Transcript PN1261.
[27] Transcript PN1266.
[28] Transcript PN1268-1272.
[29] Transcript PN1275.
[30] Transcript PN1278.
[31] Transcript PN1282.
[32] Transcript PN1592.
[33] Exhibit H1 [6].
[34] Exhibit H3 [7].
[35] Exhibit CH6 [17].
[36] Transcript PN406.
[37] Transcript PN412-413.
[38] Transcript PN423.
[39] Transcript PN414.
[40] Exhibit H1 [6].
[41] Exhibit H3 [8].
[42] Exhibit CH6 [25.2].
[43] Transcript PN277.
[44] Transcript PN439.
[45] Transcript PN271.
[46] Transcript PN470.
[47] Transcript PN449-455.
[48] Transcript PN456.
[49] Transcript PN461.
[50] Exhibit CH3 confirms transcript PN507.
[51] Transcript PN505.
[52] Transcript PN508.
[53] Transcript PN522.
[54] Transcript PN524.
[55] Transcript PN525.
[56] Transcript PN545.
[57] Transcript PN559-568.
[58] Exhibit H1 [7](c).
[59] [2016] FWCFB 2222 [35].
[60] Exhibit H3 [9].
[61] Exhibit CH6 [25.3].
[62] Transcript PN271.
[63] Transcript PN338.
[64] Transcript PN353.
[65] Exhibit CH3.
[66] Exhibit H1 [7](b).
[67] Transcript PN277; exhibit CH4.
[68] Exhibit H1 [7](d).
[69] Exhibit H3 [10].
[70] Exhibit CH6 [25.4].
[71] Transcript PN677-694.
[72] Transcript PN524-525.
[73] Transcript PN653-658.
[74] Transcript PN660.
[75] Exhibit H1 [7](k).
[76] Exhibit H3 [11].
[77] Exhibit CH6 [25.6].
[78] Transcript PN1020.
[79] Transcript PN1018.
[80] Exhibit H4 [12].
[81] Transcript PN1699.
[82] Exhibit H1 [7](n).
[83] Exhibit H3 [12].
[84] Exhibit CH6 [25.7].
[85] Transcript PN1025.
[86] Exhibit CH3.
[87] Transcript PN1699.
[88] Exhibit H4 annexure B.
[89] Exhibit H1 [7](e).
[90] Exhibit H3 [13].
[91] Exhibit CH6 [25.5].
[92] Transcript PN1700.
[93] Exhibit H4 annexure B.
[94] Exhibit H1 [7](g).
[95] Exhibit H3 [14].
[96] Exhibit CH6 [25.12].
[97] Transcript PN1701.
[98] Exhibit H1 [7](l).
[99] Exhibit H3 [15].
[100] Exhibit CH6 [25.8].
[101] Transcript PN875-877.
[102] Transcript PN878.
[103] Exhibit CH4.
[104] Transcript PN886-889.
[105] Transcript PN1702.
[106] Exhibit H1 [7](a).
[107] Exhibit H3 [16].
[108] Exhibit CH6 [25.11].
[109] Ibid [26]-[27].
[110] Transcript PN1703.
[111] Exhibit H4 annexure B.
[112] Exhibit H1 [7].
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