No judgment structure available for this case.

[2015] FWC 2302

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Goold
v
Cal Dive International (Australia) Pty Limited
(U2014/9272)

COMMISSIONER CRIBB

MELBOURNE, 14 APRIL 2015

Application for relief from unfair dismissal - jurisdiction - minimum employment period - termination at the initiative of the employer.

[1] Mr Christopher Goold (the Applicant) has made an application for an unfair dismissal remedy in relation to his dismissal by Cal Dive International (Australia) Pty Limited (the Respondent, Cal Dive, the company).

[2] Cal Dive has lodged a number of jurisdictional objections to the Fair Work Commission (the Commission) dealing with the application. The objections were heard on Tuesday 10 February 2015 and Wednesday 11 February 2015.

[3] This decision deals solely with the company’s jurisdictional objections.

1. Jurisdictional objections

[4] There were two primary jurisdictional objections made by the company. The first one was that Mr Goold had not completed the minimum employment period at the time of his dismissal as a casual employee. Secondly, it was contended that Mr Goold’s employment was not terminated at the initiative of the employer.

[5] I will deal with the minimum employment period objection in the first instance.

(a) Not completed the minimum period of employment

(i) Cal Dive

Submissions

[6] The company submitted that Mr Goold has not completed the minimum employment period because he was a casual employee who was not employed on a regular and systematic basis and he could not have held a reasonable expectation of continuing employment on a regular and systematic basis. In addition, it was argued by Cal Dive that Mr Goold’s substantial absences broke the service such that the period of continuous service was severed at various times. The result of this was said to be that the aggregate of the periods of qualifying service does not equal six months or more. 1 I will deal with each element of this objection in turn.

(a) Casual employee

[7] In relation to Mr Goold being a casual employee, it was submitted by Cal Dive that:

At various times between 2006 and 2014, Cal Dive was contracted by Esso to provide Remotely Operated Vehicle (ROV) inspection, repair and maintenance services to their offshore platforms in Bass Strait. 2

Cal Dive maintains a pool of people with ROV expertise. With each new scope of work awarded by Esso, Cal Dive issues new casual contracts of employment for those people in the pool. The casual contract is not a guarantee of work and, once Esso confirms its requirements, Cal Dive contacts those in the pool to see if they are available to accept work on the particular dates. As ROV operators work internationally, people are free to accept or reject the offer to work. 3

During 2014, Cal Dive became aware that work on Esso projects in Bass Strait would be declining and would cease during 2015. Letters were sent to permanent employees giving them notice of redundancy in around April 2015. 4

Mr Goold is a casual employee engaged in a predominantly casualised industry which is underpinned by a casual Enterprise Agreement. 5

The Cal Dive International (Australia) Pty Limited - East Coast Operations Casual ROV Enterprise Agreement 2013 (the Agreement) and the contracts of employment specifically state that the employee is a casual employee with no guarantee or obligation that the employee will be re-engaged. 6

(b) Not regular and systematic employment/breaks in continuous service

[8] The company argued that Mr Goold’s employment was not regular and systematic employment. It was submitted that:

Mr Goold commenced his first engagement with the company in December 2006 and accepted engagements on a sporadic basis until August 2012. 7

Mr Goold did not work for Cal Dive for a six-month period between 6 August 2012 and 28 February 2013. 8

Between February 2013 and 8 September 2014, Mr Goold accepted various engagements on a sporadic basis. 9

Only those periods when Mr Goold worked an on duty period and then an off duty period of equal time can be characterised as regular and systematic employment in the ROV industry. 10 As the 14 day on/14 day off cycle is the normal roster, any time worked outside of that would not be considered towards the normal roster system.11 This is because this cycle is what can be characterised as regular and systematic employment in the ROV industry.12

Mr Goold has had significant absences that broke his continuous service with the company. This was because the absences do not comply with the requirements of section 22 of the Act - in particular the 57 day absence between 29 May 2014 and 28 July 2014. This absence was said to have broken Mr Goold’s employment. 13 The result of this was stated to be that the sum of all of the periods of qualifying service does not add up to 6 months continuous employment, as at 8 September 2014.14

The company has identified those periods of service that do count and those periods that do not count. The latter have been selected on the basis of the relevant law and authorities. 15

Mr Goold was absent between August 2012 (not September 2012) and February 2013 (not January 2013) but the company does not accept that the absence could properly be described as sick leave. It was argued that the absence does not count as service because it was not a period when Mr Goold was employed by the company. This period was stated to not be an absence within section 22(2) of the Act. Therefore, it was said to break service as it does not count as service (it was not a period of unpaid leave). 16

Reference was made to the decision in Holland v UGL Resources Pty Ltd T/A UGL Resources 17 (Holland) in support of the contention that the breaks in Mr Goold’s service of two months, four months and six months were not absences of the kind that fall within the meaning of “excluded period” as defined by section 22(2) of the Act. Therefore, they cannot be included in determining whether the minimum period of employment has been achieved.18

The company stated that it seeks to rely on Holland and also the decision in Van Kampen v Transfield Services 19 (Van Kampen), as both of these decisions distinguish from the Full Bench decision in Shortland v The Smiths Snackfood Co. Ltd20 (Shortland). This was on the basis that the absence, in Shortland, was for a period of four weeks and the employee was on workers compensation. In Holland and Van Kampen, the absence was because the employee did not work. Further, it was argued that the work undertaken in Holland and Van Kampen was closer to that undertaken by Mr Goold, as compared with the work in Shortland.21

[9] It was submitted that the aggregate of the qualifying periods of service must have been continuous for at least 6 months ending at 8 September 2014. Absences may break continuity of service or do not break continuity of service but do not count towards the length of continuous service. 22 The Commission was referred to the decision in Shortland which had been distinguished from the two other decisions - Holland and Van Kampen.23

[10] In Holland, it had been found that service cannot be continuous if there were periods of absence unless the absences are of a type within section 22 of the Act. There was a period of absence from 29 May 2014 and 28 July 2014. The Applicant was not employed by Cal Dive during this period and the absence was not an excluded period within the meaning of section 22(2) of the Act. It was argued that, as at 29 May 2014, neither party could have considered that the employment relationship would continue because the Enterprise Agreement makes it clear that each engagement stands alone. 24

[11] Therefore, the company argued that the absence between 29 May 2014 and 28 July 2014 broke the continuity of employment. Mr Goold could not have had continuous service of 6 months, with Cal Dive, as at 8 September 2014. 25

[12] Prior to that, it was also contended that Mr Goold’s absence between 10 December 2013 and 18 February 2014 was not an excluded period, under section 22(2) of the Act. It therefore broke Mr Goold’s continuity of service between the two qualifying periods. 26

[13] Further, the Applicant’s service since December 2006 was broken by his absence (he did not work) between August 2012 and February 2013 as the period does not meet the requirements of section 22 of the Act. 27

[14] In relation to whether Mr Goold’s employment was regular and systematic, the Commission was referred to the decision in Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 28 (Ponce). Holland was said to be authority for the proposition that the assessment needs to be made in the context of the particular circumstances of each case.29 The engagements undertaken by Mr Goold that could be characterised as regular and systematic were said to have been between:

24 May 2013 and 25 October 2013

18 February 2014 and 29 May 2014

22 August 2014 and 5 September 2014. 30

[15] It was argued that the qualifying periods of service were the roster cycles (on/off duty and 12 hour shifts) which reflect the norm in the ROV industry. The company contended that Mr Goold’s engagements, other than those set out in the paragraph above, were irregular and sporadic and could not be considered to be regular or systematic employment. 31

[16] It was submitted that Mr Goold’s engagements accorded with the Holland decision as they were varied with no established pattern. As well, it was stated that, as there were considerable absences between engagements, the employment could not be described as systematic. 32

(c) No expectation of continuing employment

[17] Cal Dive submitted that Mr Goold would not have held an expectation that he would be given continuing employment on a regular and systematic basis because the work was not proceeding on a continuing basis. Therefore, any such expectation held by Mr Goold was described as unreasonable. 33 It was argued that it was unrealistic for Mr Goold to expect that there was continuing work, given the nature of the industry and the fact that he was employed as a casual.34 The company asserted that Mr Goold knew that Cal Dive’s work with Esso was for a limited period and that it would be winding down.35 During the last qualifying period (from 22 August 2014), the company became aware that the Sale operations would be closing and Sale office staff were notified of redundancies.36

[18] It was contended that Mr Goold was not rostered for future work as he was rostered for a further two weeks’ worth, which was subject to change. The company argued that, being on the roster for a further two weeks does not amount to an expectation of continuing employment. Rather, it could only be an expectation of two weeks’ work. 37

[19] Further, the company submitted that the fact that it continued to perform work on the Esso project between September 2014 and the present, is not relevant. This is because the relevant time is, at the latest, the date of termination. The fact that the Applicant’s expectation came to fruition would result in an assessment of Mr Goold’s state of mind with the benefit of hindsight. That the company has worked since the roster with two weeks of further work for Mr Goold was said to demonstrate that Cal Dive did not have any degree of certainty about the basis on which future work would proceed at that, or any, particular time. It was commented that it was difficult to comprehend that Mr Goold had an expectation of continuous work when the company itself did not have that expectation. 38

[20] The decision in Ponce was referred to and distinguished from this case in that, in Ponce, if traffic controllers were not required, they were assigned to other clients. It was argued that, in this case, there is one client and it was common knowledge that work with the client would cease in 2015. Further, “continuing” was said to mean “ongoing, lasting, permanent and unending” - not ended. 39 The decision in Holland was preferred.40

[21] In addition, the company submitted that the probability of being offered any work was affected by a number of factors outside Cal Dive’s control. These included the operational demands of the project, whether Esso would offer the company the scope of work and whether Esso would approve the personnel the company proposed to utilise. 41 Further, the company had made it clear that each engagement stood alone and that there was no guarantee of ongoing work.42

[22] In summary, in relation to the first jurisdictional objection, the company argued that Mr Goold had completed three periods of service that could be characterised as systematic and regular. However, the Applicant could not have an expectation that he would have ongoing employment on a regular and systematic basis. Any expectation that Mr Goold might have held was unreasonable in light of employees having been notified of upcoming redundancies. 43

[23] Further, the industry was stated to be necessarily casualised because the work fluctuates due to operational requirements. Each engagement was discreet was no expectation of ongoing work. It was contended that the true nature of the employment was mutually understood - that of casual. 44

[24] Finally, the periods of absence between the qualifying periods were said to not constitute regular and systematic employment. As well, the absences broke the continuity of service between the qualifying periods of service. Therefore, it was argued that the Applicant’s period of continuous service, as at 8 September 2014, was 15 days. This is less than the minimum employment period of six months. 45

Witness evidence

(a) Mr Evans

[25] Mr Evans is the General Manager of Cal Dive and is responsible for the Australian and South East Asian operations. 46 He provided a written witness statement47 and also gave oral evidence.

[26] It was Mr Evans’ evidence that:

Cal Dive purchased Fraser Diving in August 2006 and Mr Goold then became an employee of Cal Dive. 48

The dark spots on Mr Goold’s work history reflect the periods in the year when there was no work offshore and so the company was not working or the people were rostered off. 49

The regular roster is two weeks on/two weeks off. He could not see that pattern in Mr Goold’s employment history. There was some pattern in 2008. 50

Looking at the pattern of Mr Goold’s work, he agreed that Mr Goold had worked on a regular basis/consistently. 51

He could not see a regular pattern in Mr Goold’s employment. 52

The company had a roster system so that, if the company needs 6 people, there would normally be 8 or 9 pilots on the roster as sometimes they are not available. 53 The pool of ROV personnel who are called upon to work varied in size. The company normally tried to keep the pool to between 9 and 12 people; 6 and 12 people, depending on who is around and available.54

There are a limited number of the pool who are qualified to be supervisors. However, on the day of the incident, 2 of the 3 crew were qualified as supervisors. 55

Mr Goold was one of 6 or 9 personnel who were regularly engaged. The company tried to keep a core of people. 56

Mr Goold was a casual employee and the company was not responsible for him when he was not working for Cal Dive. 57

He was not aware that Mr Goold suffered a medical illness (heart condition) in August 2012 nor that he was not available to work between then and February 2013. 58

The company contacts ROV personnel several weeks out from when Esso requires the work to be done in order to select the most suitable crew for the particular work. This is because Esso has to approve the crew that the company puts forward. Also, the company contacts the people to make sure they have the requisite staff to perform the required work for Esso. 59

The ROV work schedule at the beginning of 2014, after the initial work, was a “bit loose with Esso”. 60

He was telephoned by Esso management on 18 August 2014 and was told that work was winding down. 61

On 12 September 2014, he had been absolutely blindsided by Esso when he was told at a meeting that the ROV work would be winding down in the first half of 2015. There would then be no further ROV work until 2016. He had expected that the contract would have been at least the confirmed 5 years, which meant ongoing work for another 2.5 years. 62

The contract’s 5 years terminates in December 2015 and Esso originally said that the ROV work would cease in December 2014. The work is now to cease in May 2015. 63

A number of weeks after Mr Goold’s dismissal, a notification of possible redundancy letter was given to the permanent staff (office) in the Sale office on 22 October 2014. 64

The letter stated that Esso had advised that the planned offshore work in 2015 has been cancelled or deferred. 65

Since Mr Goold’s dismissal on 8 September 2014, the company continues to perform ROV work for Esso and (as at 10 February 2015) at least into the future. 66

The contract with Esso gives the company the contractual expectation that it will get work but the company does not know what that work will be. Therefore, people cannot be rostered until the company knows what the work will be. 67

(b) Mr Barton

[27] Mr Barton is Area Manager East Coast Operations for the company. Mr Barton provided two written statements 68 and gave oral evidence.

[28] Mr Barton’s evidence was that:

He was Mr Goold’s Manager throughout Mr Goold’s 8 years with Cal Dive. 69

The normal ROV work cycle was 14 days on/14 days off. 70

Between 2006 and 2014, Mr Goold always worked on ROV’s and as a supervisor. This was with the exception of the period after his health issues when he alternated as a senior pilot technician. 71 This was because another person had been made up to supervisor and the company wanted to extend this person’s experience as a supervisor. Mr Goold had also worked as a superintendent for one day.72

At the time of his dismissal, Mr Goold was employed on a casual contract which went from 7 August 2014 to 31 December 2014. 73

He agreed that Mr Goold had worked basically every month over the years. 74

He was aware that Mr Goold was absent from work for about 6 months (2012/2013) due to a medical condition. He was telephoned by Mr Goold and advised that he would be unavailable for work (no sick leave form provided). 75 He confirmed that this period was from July 2012 to late February 2013.76

For about 4 months over Christmas 2013, there was a break in Mr Goold’s employment history because the company did not have a purchase order or work scope for work for that period. He did not know what Mr Goold was doing during that period. 77

For a shortish period in June/July 2014, Mr Goold did not work because the ROV was broken. 78

A few weeks before the start of a job, the company looks at the availability of personnel, contacts them and forms a roster around their availability. A week before, the company sends a crew change matrix to Esso for approval. 79 He confirmed that there was a real system going in relation to engaging ROV personnel and getting them ready to go out and perform work for Esso.80

The company has a pool of ROV personnel from which 6 were taken offshore with a few reserves. The company needed at least 6 personnel to function (3 on/3 off). 81

Some of the personnel worked for other companies as well. As far as he knew, the applicant did not work for other companies. 82

When the work was there, Mr Goold was regularly employed from the pool. If there were any periods when Mr Goold did not work, it was because Cal Dive did not require him as there wasn’t any work for Esso. 83

Mr Goold was very reliable in relation to his availability. The others in the pool were also reliable and some were regular whilst some worked for others. Just about all of the others had worked elsewhere at some point in time. 84

He agreed that Mr Goold was one of the more reliable in the pool in terms of being available when required. 85

In relation to the contracts that the company offers, there is no guarantee that the person will be offered work during the dates on the contract. The contracts formalise that they agree to work in accordance with the agreement; how they will be paid etc. 86

It was in the middle of one of these contracts that Mr Goold was terminated on 8 September 2014. 87 It was due to expire at the end of December 2014.88

The contracts were not issued end to end but when the work scopes were issued by Esso ie. when they were needed. 89

There would have been periods of time when Mr Goold would not have had a contract because of gaps in the work. 90

During Mr Goold’s 10 years’ employment with Fraser Diving and Cal Dive, he had worked at Esso for the company except for 1 week in 2014 when the company was released by Esso to do a 1 week survey for another company. 91

Mr Goold’s work had been operating ROV’s offshore on the Esso platform. 92

Fraser Diving/Cal Dive have provided an ROV service to Esso for 10 years. If Esso put that work out to tender, Cal Dive would be likely to tender. The company would be disappointed if it was not successful. In the past 8 years, it had only been required to tender once for the work - in 2010 (successfully). 93

Work for Esso on the platforms had been declining for the last year to 2 years. Historically, the work had been for 6 - 9 months in the year but the company was lucky now to get 3 - 6 months. Having a contract does not guarantee any certain amount of work. 94

He estimated that the work will cease in April/May 2015. 95

From whenever the ROV work finishes, Esso does not wish to maintain an office or equipment in Sale. 96

He attended a meeting at Esso, with Mr Evans, on 12 September 2014, during which Esso told him that the ROV work would be decreasing and then ceasing in the first half of 2015. This was the first time he had heard of this. He was also blindsided. 97

It was stated that Mr Evans had confirmed with him on 18 August 2014 that, following a conversation with Esso, work was winding down and would most likely cease. 98 Mr Evans had told him that he had had a telephone conversation with Esso. He had not been involved in the telephone discussion with Esso.99

This was said to not be at odds with Mr Evans’ evidence that he did not know this prior to the meeting on 12 September 2014. This was because Mr Evans was confused between the ROV work and the Sale operation. The company was still under the impression, in September 2014, that the Sale operation would continue to be maintained by Esso. 100

Prior to the 12 September 2014 meeting, Mr Evans and he knew that the ROV work was winding down and would cease. 101 The offshore work and the Sale operation were two totally separate things.102

On 12 September 2014, the company was told that the contract was ceasing, in relation to the Sale operation, sometime during the second quarter of 2015. 103

If Esso gave the company ROV work, it is intended to manage it from Perth (once the Sale operation closed). The company only has a purchase order for ROV work for one platform. There are not yet purchase orders or confirmation in relation to the other two so far. Until he receives a purchase order, he cannot say that they will go ahead. 104

He could not recall whether he had kept the guys offshore informed that the work was decreasing and that there was only a finite amount of work offshore. This was through general conversation and phone calls. 105

Prior to 8 September 2014, he did not recall having communicated to Mr Goold that the ROV work was winding up or ceasing. 106 Mr Goold may have just expected that his previous employment pattern in relation to Esso work would continue.107

The only ROV work available for Mr Goold with the company was the Esso work. 108

(c) Mr Dunlop

[29] Mr Dunlop is the Human Resources Adviser for the company and he provided two witness statements. 109

[30] Mr Dunlop gave the following evidence:

At the time Mr Goold was employed, the company’s practice was to give a casual employment contract to ROV personnel whom they wanted to engage. The contracts were for three months with a start/finish date and were terminable on one day's notice. The contracts were previously of one year’s duration. 110

Looking at Mr Goold’s work history pattern, from 2006 to 2014, it shows that, for the most part, Mr Goold was employed on a regular basis. Some parts of it are indicative of occasional or every now and then, engagement as a casual. 111

He was aware, through Mr Barton, that the period from August 2012 to early 2013 related to Mr Goold’s health issue but he had not commenced with the company at that point in time. 112

He was aware that, in June/July 2014, the ROV that Mr Goold used to operate was damaged. The logical conclusion was said to be that Mr Goold was not offered any work during that period. 113

(ii) The Applicant

Submissions

[31] It was submitted that there was a preliminary issue which needed to be addressed. This was section 22 of the Act and its application. It was stated that the combination of sections 382 and 383 of the Act provide that there must be a minimum period of employment (in this case - 6 months) before an unfair dismissal application can be made. 114

[32] Section 384(2) was said to state how a “period of employment” of a casual is determined. It was contended that it goes directly to the concept of a period of service (rather than a period of continuous service). The decision in Shortland was said to address this distinction and to also explain the reason that s.384(2) is in the Act.

[33] It was submitted that the questions arising from section 384(2) are: whether or not Mr Goold had regular and systematic employment with the company over his total service (nearly 10 years) and whether or not, during the last 6 months of casual employment, Mr Goold had a reasonable expectation that the employment would be ongoing. 115

[34] With respect to section 22 of the Act, it was contended that it is not relevant to casuals. The Applicant stated that the Full Bench in Shortland did not go to section 22. It was argued that section 22 sets out when continuous service is not broken eg unauthorised absences of unpaid leave. Casuals, by definition, could never be on an unauthorised absence or on unpaid leave. This is because casuals work from engagement to engagement. However, it was submitted that, underpinning that, there is an employment relationship in circumstances as contemplated by s.384(2). Therefore, the criteria contained in s.384(2) are the questions to be answered. 116

[35] In Holland, it was said that the periods of engagement were discrete and short and broken by long intervals (performing shutdown maintenance). The Commission found, therefore, that the employment was not regular or systematic and that the person should not have any reasonable expectation of ongoing such employment. 117

[36] With regard to the decision in Shortland, it was noted that the Full Bench observed that, during a period of casual employment, the nature of the casual employment changes so that there is no pattern or regularity. The Full Bench was said to recognise that there might be periods of ad hoc employment and then a return to regular and systematic employment. The periods of ad hoc employment would not count. 118

[37] It was submitted that, when Mr Goold’s employment history, from 2006 to 2014, is considered, it could be described at the very regular end of the spectrum for casuals. The Applicant argued that there were expectations or a reliance, on both sides, that there was an employment relationship which consisted of regular and systematic employment. 119 Mr Barton’s evidence, in relation to there being a small pool of people with Mr Goold being one of the most reliable and that, to the best of his knowledge, he understood that Mr Goold only worked for Cal Dive, was highlighted in this regard.120 This was said to amount to an ongoing employment relationship, albeit within the legal definition of casual.121 It was not disputed that Mr Goold was a casual.122

[38] The decision in Shortland was further referred to in relation to when continuous service by a casual employee might be broken. It was stated that, in Mr Goold’s case, there is an established sequence of engagements over 8 years. It has not been broken because neither the company nor Mr Goold have made it clear that there will be no further engagements. That Mr Goold was rostered on to work after his dismissal was said to indicate that the employer did not tell the employee that there would be no further engagements. 123

[39] Shortland was also referred to in relation to gaps between individual engagements in a sequence of engagements not interrupting a period of continuous employment. With respect to the company’s contention that any additional days off in a 14 day on/14 day off cycle represent a gap, the Shortland decision was said to refute this argument. Further, this decision was stated to provide that a period of continuous service is not broken by a period of leave or an absence due to illness or injury. Therefore, it was submitted that Mr Goold’s absence due to illness or for a holiday would not break his continuous service. 124

[40] In relation to what Mr Goold’s expectations of future employment were, the Commission was referred to the witness evidence. It was stated that, as at 8 September 2014, all of the witness evidence showed that Mr Goold did not know that Esso had indicated that it was changing its previous decade old pattern in relation to the ROV work it gave Cal Dive. It was Mr Goold’s evidence that he did not know and there was no evidence which showed that he did. Mr Barton’s evidence was described as inconclusive as to whether he had told Mr Goold. 125

[41] It was argued that, at the time he was terminated, there were compelling reasons why Mr Goold had an expectation that, but for his dismissal, he would have continued to get employment, as he had in the past, on a regular and systematic basis. 126

[42] In relation to what amounts to “regular and systematic” casual employment the decisions in Ponce and Yaraka Holdings Pty Ltd v Gilijevic 127 (Yaraka) were referred to. It was contended that Mr Goold’s work history showed that he was employed on a regular and systematic basis, as defined in Ponce and Yaraka.128

Witness evidence

Mr Goold

[43] Mr Goold provided a written statement 129 and also gave oral evidence. Mr Goold’s evidence was that:

In relation to his heart surgery, he informed Mr Barton that he had heart issues which needed addressing and that he would need to take some time off. Mr Barton was quite sympathetic and told him that that was fine. He had the heart surgery followed by a few months recovery (the latter half of 2012 and the first two months of 2013). He got a medical certificate when he was well again and returned to work. 130

There was no work available during December 2013/January 2014. 131

He had a holiday in Japan in June/July 2014 for two weeks. This was at the end of his shift and when some boat work was due to finish within the next two weeks. When he returned, there was then no work offered for 1 - 2 weeks. When work was offered, he went back to work. 132

The white spaces in his work history were stated to not be times he had gone on holiday. Rather, they were when he was either rostered off or not available. 133

He did predominantly offshore ROV work for the company on 12 hour shifts with 14 days on/14 days off. 134

He confirmed that he did not work between 16 August 2012 and 28 February 2013; nor between 11 December 2013 and 18 February 2014 or between 30 May 2014 and 27 July 2014. He worked for half a day on 5 August 2014. 135

He had never filled out a sick leave form or any other form during his time working for the company. 136

There was no authorisation process for his “sick leave” (heart surgery) except for Mr Barton’s approval. He did not know whether he had to give Mr Barton a reason but normally, he felt he had to. He also felt it necessary to give the company as much notice as he could so he could be replaced. The contractual thing was said to have never come into it. 137

He was not paid during periods of leave. 138

He confirmed that, at the time of his dismissal, he was employed under a signed casual contract of employment from 7 August 2014 to 31 December 2014. 139 He had signed the same contract for the last 5 years. He was aware that Cal Dive could not guarantee ongoing work. He did not believe that the work was ad hoc. It was stated that he worked when work was required and that he had never been unavailable apart from when he had his heart operation.140

When he came off his 14 day swing on 5 September 2014, he was scheduled to go back on his next swing on 19 September 2014. 141

(iii) Considerations and conclusions

[44] In relation to its first jurisdictional objection, the company argued that Mr Goold was a casual employee who was not employed on a regular and systematic basis except for 3 periods. However, the substantial absences between Mr Goold’s periods of work were said to break the continuity of his service. Further, it was contended that the qualifying periods of service were only those that reflected the roster cycle (14 days on/14 days off). Therefore, as at 8 September 2014, Mr Goold was stated to have only had a period of continuous service of 15 days. Further, the company argued that Mr Goold could not have held a reasonable expectation of ongoing regular and systematic employment.

[45] On the other hand, it was argued by Mr Goold that he had completed the minimum period of employment, as a casual, at the time of his dismissal. He contended that his absences had not broken his continuity of service and that his employment was regular and systematic. In addition, it was submitted that Mr Goold had a reasonable expectation that ROV work on the Esso project would be continuing in the future.

(a) The legislation

[46] Section 384 of the Act sets out the definition of “period of employment” as it applies to casual employees as follows:

“384 Period of employment

(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.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis;”

(b) Regular and systematic employment?

[47] I have carefully considered all of the material before me. Both parties referred to various decisions in support of their respective propositions. In relation to the question of whether Mr Goold’s employment was regular and systematic, it is noted that it was indicated by the company that there were three periods when Mr Goold’s employment could be characterised as such. These were from:

24 May 2013 - 25 October 2013

18 February 2014 - 29 May 2014

22 August 2014 - 5 September 2014.

[48] The company’s criterion for determining that these periods were regular and systematic employment was that the pattern of work conformed to the roster cycle (14 days on/14 days off). Work not in accordance with this pattern was therefore said to be not regular and systematic. The pattern of Mr Goold’s employment was helpfully set out by the company on a calendar which highlighted the shifts worked between January 2012 and September 2014. The pattern of employment shows shifts being regularly worked over that period of time save for between September 2012 and March 2013; over the December 2013/January 2014 period and June/July 2014. At least one shift has been worked in each of the other weeks, making allowances for rostered days off. Therefore, it is my view that Mr Goold’s employment was regular.

[49] In terms of whether the employment was regular and systematic the company argued that Mr Goold’s engagements were varied and that there was not an established pattern. In Ponce, Commissioner Roe discussed the situation where there is not a clear pattern or roster of hours and days worked. It was his view that 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.” 142

[50] I adopt Commissioner Roe’s approach. In this case, the evidence shows that Cal Dive offered ROV work to Mr Goold whenever it was made available by Esso. Because of the process by which the company engaged Mr Goold (and the other personnel in the pool), the company has been aware that Mr Goold has generally made himself available for work, except for the period during which he had heart surgery. It seems to have been common ground that Mr Goold was one of a core group of the pool employees and that he was consistently available. It was Mr Goold’s uncontested evidence that he was consistently offered ROV work and that, except when he was away due to his heart surgery, he worked all of the shifts that the company offered him. This was also the same amount of ROV work that Esso required of the company. It was Mr Goold’s evidence that, except for the period between September 2012 and March 2013, the “black spots” ie. days when he did not work, were due to no work having been required of the company, by Esso or when the ROV vehicle was not operational. Mr Goold also gave evidence, which was unchallenged, that, for the past 10 years, he had not worked for any other company other than Fraser Diving/Cal Dive.

[51] Therefore, as Mr Goold was regularly offered ROV work on Esso’s platforms which he accepted, and, because the work that was offered was the sum total of Esso work that was made available to the company by Esso, I find that Mr Goold’s employment, as a casual employee, was on a regular and systematic basis. Section 384(2)(a)(i) of the Act has been satisfied.

(c) A reasonable expectation of continuing employment?

[52] It is apparent from the evidence that Mr Goold expected that his employment with Cal Dive would continue on. This was on the basis that he understood that there were 3 more platforms to be done by the end of the year. The new year would then unfold, as per Esso’s requirements, as it had done for the previous 9 new years.

[53] The company argued that Mr Goold’s expectations were unrealistic as Esso ROV work had been declining over the past few months and because Esso had advised that it would cease, together with maintenance of the Sale operation, in the first quarter of 2015. Mr Goold was adamant that he did not know that Esso ROV work would cease in 2015. Mr Barton’s evidence, on this point, is not conclusive in relation to him having told Mr Goold that the ROV work would cease. Therefore, I am inclined to accept Mr Goold’s side of the story. Further, the meeting, at which Esso told Cal Dive that it would no longer maintain the Sale operation, took place after Mr Goold’s dismissal. In addition, the notification to the affected Sale employees occurred after Mr Goold’s employment was terminated.

[54] The meeting with Esso, where Cal Dive was told that ROV work would be winding down and would then cease, took place on 18 August 2014. As indicated in the paragraph above, there is no evidence before me which shows that Mr Goold was told about this. Having worked on the Esso project for nearly 10 years and not having been advised by the company that the requirements of the Esso project were going to radically change, it is my view that it was reasonable for Mr Goold to consider that his employment with Cal Dive would continue on a regular and systematic basis. Further, it was Mr Goold’s clear understanding from an Esso representative, that Esso required 3 platforms to be done by the end of the year. Therefore, I am satisfied that, during his period of service as a casual employee, Mr Goold had a reasonable expectation of continuing employment on a regular and systematic basis (s.384(2)(a)(ii)).

(d) Has Mr Goold completed the minimum period of employment?

[55] The final issue to be determined, in relation to the company’s first jurisdictional objection, is whether or not Mr Goold had completed the minimum period of employment at the time of his dismissal. It was argued by Cal Dive that Mr Goold had not completed 6 months of employment. This was on the basis that Mr Goold’s substantial absences broke the period of continuous service with the result that the aggregate of the periods of qualifying service did not amount to 6 months or more. The company relied on section 22(2) of the Act as the basis for excluding the periods when Mr Goold did not work from the period of continuous service. In addition, the decision in Holland was referred to in support of this proposition.

[56] On the other hand, the Applicant relied on the decision in Shortland and contended that, on the basis of Shortland, section 22(2) of the Act is not relevant. It was submitted that Mr Goold met the minimum period of employment requirement as the absences were not relevant as the test in Shortland had been met.

[57] I have considered carefully, the various authorities that the parties have made reference to. The decision in Shortland is a Full Bench decision and, as such, provides binding authority for subsequent single Member decisions. In that decision, prior to dealing with the particular factual situation, the Full Bench discussed the meaning of “a period of service” and “a period of employment” and the distinction in the legislation between the two. The Full Bench then went on to state that:

“Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.” 143

I respectfully adopt this approach.

[58] In this matter, Mr Goold has an established sequence of engagements with Cal Dive. There is no evidence before me that, prior to 8 September 2014, either Cal Dive or Mr Goold made it clear to the other that there will be no further engagements. Mr Goold accepted all of the engagements offered and Cal Dive continued to offer the engagements. Therefore, the gaps between Mr Goold’s engagements do not interrupt his period of continuous employment. Accordingly, I find that Mr Goold had completed the minimum period of employment at the time of his dismissal.

(b) No termination at the initiative of the employer

(i) Cal Dive

Submissions

[59] It was submitted by the company that Mr Goold was not dismissed within the meaning of the Act. This was because, at the time of issuing the Termination of Employment e-mail, the Respondent intended, and communicated to, Mr Goold that it would offer future work to him again. 144 It was argued that section 386 of the Act requires that the Applicant’s employment must have been terminated. The company contended that, as at 8 September 2014, it did not intend to terminate the employment relationship. Rather, it intended to put Mr Goold back out on the Esso project in a position satisfactory to the client, once the client wasn’t so upset.145

[60] Cal Dive argued that Mr Goold knew that the company did not intend to cease the employment relationship altogether. This was because the company intended to put Mr Goold back out on the project when it could. Therefore, it was contended that the employment relationship was not terminated. 146

[61] The company submitted that, through Mr Dunlop’s evidence, it had been clarified that the reference to “related services” in the termination e-mail was a reference to the specific project that Mr Goold was attached to. 147

[62] At the time Mr Goold made his application, it was argued that not enough time had passed with the client (one week) for the company to have offered further work to Mr Goold. The company stated that this had been discussed and understood by Mr Goold. It was said that Mr Goold had agreed, during his evidence, that Mr Barton did not terminate his employment. The company was said to have then offered Mr Goold work in mid October 2014 which would have been the next swing after the 14 days off that Mr Goold had been rostered to have. That Mr Goold had made an unfair dismissal application in the meantime was stated to not have changed the basis on which the offer was made. 148

[63] The offer had been rejected by Mr Goold on the grounds that it was to a lower position, with lower status and responsibility, than that of his previous position as a supervisor. It was argued that the company had offered Mr Goold that work (senior pilot technician) as he was qualified to perform that role. The company said that the position required the same qualifications as a supervisor and that Mr Goold had worked as a senior pilot technician in September 2013 and also in a more senior role than a supervisor (as a superintendent), in September 2014. The issue was stated to be whether the client would accept Mr Goold to work as a supervisor. 149

Witness evidence

(a) Mr Dunlop

[64] It was Mr Dunlop’s evidence that:

On 22 October 2014, he sent an e-mail to Mr Goold and confirmed that an offer of employment as a ROV senior pilot technician, had been sent to him on 21 October 2014. 150 The offer of employment was sent out then because it was just before an incoming swing and the company needed time in order to get Mr Goold’s agreement and plan to get him out on the job.151

The company did not do anything about making Mr Goold an offer of work until after the conciliation, in relation to Mr Goold’s application, in the Fair Work Commission. 152

The offer of the position of senior pilot technician was a lesser role, with lesser remuneration and responsibility than a supervisor’s position. 153

The offer was an attempt to solve the problem (of the unfair dismissal claim) and to bring Mr Goold back into the family. 154

He did not know whether Mr Goold would have been offered that role if he had not made an unfair dismissal application because of the impact of other issues. 155

Mr Barton had called him to advise him about what had happened regarding Mr Goold, prior to Mr Barton speaking with Mr Goold. He was aware that there had been a telephone call between Mr Barton and Mr Goold on 1 September 2014 and that there had been some sort of disagreement. 156

Mr Barton told him that he had spoken to Mr Goold and that he was going to pull Mr Goold off the Esso project until “the heat had died down”. 157

Prior to Mr Barton’s telephone call, he knew nothing about Mr Goold. He was not aware that Mr Goold had a history of working exclusively for Cal Dive nor that he was a long-standing employee. 158

In relation to the e-mail of 8 September 2014, it was stated that the e-mail simply thanked Mr Gould (or an employee who had only worked for a couple of months) for all of the work he had done. There were said to be no subtext in it. 159

There was no clarification in the e-mail of 8 September 2014, that it was in the context of Mr Goold’s employment continuing. 160

It was confirmed that the subject of the e-mail was “Notification of Termination of Employment” and that that would have been the first thing that Mr Goold would have seen. He agreed that the e-mail also said that it constituted formal written termination of employment. 161

He agreed that the e-mail could have led Mr Goold to believe that his employment was being terminated, effective immediately. 162 However, he said that the sentence needed to be read in its totality and that it meant that Mr Goold was being pulled off the Esso Diving ROV project.163

It was confirmed that Mr Goold had contacted him by email less than 45 minutes after he had sent the e-mail. He agreed that Mr Goold had asked him to give him an official reason for his termination. 164

He had not responded because Mr Barton had already given Mr Goold the reason. His e-mail to Mr Goold had not been sent in isolation. 165

He was a little surprised when he received the e-mail as Mr Barton had already given Mr Goold the reason. He therefore did not know why Mr Goold was asking him. 166

He agreed that he could empathise that Mr Goold could have felt that his employment had been terminated. 167

It was confirmed that the only ROV work that the company had was with Esso and that Mr Goold only performed ROV work. 168

By terminating Mr Goold’s employment, he was only terminating his employment in relation to the Esso ROV contract - a project termination. 169

By terminating Mr Goold’s employment for the Esso Diving ROV and related services sub agreement, this effectively left Mr Goold with nothing to do for Cal Dive. 170

He was aware that the termination event had already taken place on 8 September 2014, when he sent his e-mail to Mr Goold. He knew that Mr Goold was already rostered to work on another swing and agreed that the roster showed that Mr Goold was rostered on as a supervisor from 19 September 2014 to 2 October 2014. 171

(b) Mr Barton

[65] It was Mr Barton’s evidence that:

At the time of his dismissal, Mr Goold was beginning 2 weeks’ off and was rostered on in a fortnight’s time to work another twin. The roster was said to be an indication only, so that people could organise their life, and not a guarantee. It told Mr Goold when he was due to come back on but there was no guarantee. The rosters indicated when they were supposed to be offshore and it gave the personnel time to advise the company of they could not attend. 172

The roster had not been pushed out past the further two weeks because they hadn’t got further than a month ahead. 173

He telephoned Mr Goold on 8 September 2014 and advised him that he would not be going back out to the platforms and that when the heat from the client had died down, he would see what he could do to put him back out to work. 174

He could not remember whether he had said FTA or offshore. He did not see it as relevant as offshore is offshore. He thought he had just said to “let the heat die out of it and I will see what I can do”. 175

He did not intend to terminate Mr Goold’s contract on 8 September 2014. He would just not offer Mr Goold work until such time he could possibly get him back offshore. 176

It was an HR decision and not his decision in relation to Mr Goold’s termination. 177

Mr Goold was offered work, on 22 October 2014, as a senior pilot technician. 178

Mr Goold was not offered work until 22 October 2014 because the company needed to let the heat out of the situation - needed Esso to calm down a little bit. 179

He had expected Mr Goold to accept the offer of work as a senior pilot technician on the Fortescue platform initially. It would have rolled over to the Snapper platform. 180 He was surprised when Mr Goold did not accept it because it was a well paying position with less responsibility and it would have been a way back into supervising.181

It was always his expectation to offer Mr Goold additional casual work - to put him back out on a platform. 182

He did not instruct Mr Dunlop to write the termination email to Mr Goold. The email appeared to have terminated Mr Goold’s employment in relation to working for Esso. 183

In relation to the changes he made to his written evidence concerning his conversation with Mr Goold, he said that he had had a memory lapse. It was confirmed that his original instructions in relation to his written statement included reference to Fortescue platform. He recalled that he had subsequently thought about it and he did not know why he had written it to include Fortescue. This was because he would have said Fortescue when he did not think Mr Goold would have been going back to Fortescue. He may have been going back to the next platform (there are 14 platforms). 184 He was unwilling to put Mr Goold back onto Fortescue because of the situation that had developed on Fortescue.185

After the Fortescue project, the company believed that there would then be ROV work on the Snapper platform, as the platforms are done one after the other. However, he could not recall whether the company had not received a purchase order for the Snapper platform work. The Snapper work would have started immediately after the Fortescue work had finished. 186

When he rang Mr Goold to terminate him, he had an amicable conversation, during which Mr Goold indicated that he understood and that he accepted that his performance and behaviour as a supervisor, on 1 September 2014, had not been satisfactory. This included the telephone conversation that Mr Goold had had with him on that day. 187

He was unaware of Mr Goold’s situation at home at the time of the telephone call. 188

Prior to the telephone call on 8 September 2014, he intended to offer Mr Goold future work but he did not guarantee it. During the call, he had said to Mr Goold to leave it to him and to let the heat die out and he would see what he could do. 189

(ii) The Applicant

Submissions

[66] The Applicant submitted that:

The company terminated Mr Goold’s employment, clearly and unequivocally, on 8 September 2014. 190

The dismissal occurred in the circumstances of Mr Goold having worked for the company for 10 years; he was a supervisor for all but a short period; he only worked on Esso projects offshore in Bass Strait (except for 1 week on a boat). 191

There were some sort of disagreement, on the telephone, between Mr Goold and Mr Barton on 1 September 2014. 192

On 8 September 2014, Mr Barton rang Mr Goold and told him that he would not be going back out to work and that Mr Barton might have something for Mr Goold in the new year (in 4 months’ time). 193

That amounts to a termination as there was no other work that Cal Dive had for Mr Goold to perform, other than ROV work. 194

The parties agree that Mr Barton’s indication about something in the future was vague. The Applicant’s submission was that it was hopelessly vague. 195

Later in the day, the HR Manager, Mr Dunlop, emailed Mr Goold under the subject heading “Notification of Termination of Employment”. The content of the email was described as formal written termination of employment for the Esso Diving ROV work. 196

As ROV work for Esso was all he had done for 10 years, the email ended his ability to earn a livelihood in the foreseeable future. 197

Mr Goold did not receive a response to his email request for the reasons for the termination of his employment. 198

It was not the termination of a particular engagement within an ongoing employment relationship. This is supported by the fact that no work was offered to Mr Goold until mid October 2014 (after he had lodged an unfair dismissal claim). The offer of re-employment was for a lower position than that of supervisor. 199

The email thanked Mr Goold for the work he has done. 200

Witness evidence

Mr Goold

[67] It was Mr Goold’s evidence that:

There is a big difference between the role of supervisor and that of a senior pilot technician. There was not a big difference in terms of status but status did come into it. The pay was also significantly different. However, the supervisor has a lot more paperwork and is responsible for communicating with platform supervisors, Esso personnel and Mr Barton and for making decisions about whether to work in the weather etc. 201

In terms of future work, he and the rest of the crew were told that, when the boat work finished, there were two, possibly three, more platforms to be done before the end of the year, if time permitted. It was hoped that they would be finished before Christmas but they may have to work over Christmas. He was therefore expecting to at least work up until the end of the year - as per normal. Then the next year was a different story. 202

He and his crew were not informed about work approvals, purchase orders or the like. 203 He was told that Esso had put such plans in place (that there were three platforms to work on before the end of the year) - by an Esso person who was also on the boat.204 Normally, Mr Barton would tell them what was planned or what they were doing for the rest of the year.205

Neither he nor his crew had any idea that future work for Esso was not looking good. It was never discussed and it had not been mentioned to him. 206

Despite being Cal Dive’s representative on the platform (as a supervisor), he did not know that the ROV work for Esso was winding up. 207

He expected to be working for Cal Dive on an ongoing basis and that it would be on a regular and systematic basis. This was because, as one of the core group, when work was available, he expected to be doing it - as he had for the past 10 years. 208 He agreed that his expectation of work in the past formed the basis for his expectation of future work. This included an expectation that Cal Dive would continue to perform ROV operations for Esso.209

His understanding, as at 8 September 2014, was that there were three more platforms to do until the end of the year. 210 At that point in time, he and the crew had not been informed about what was happening in 2015. He was expecting that there would be continuing work as that was what normally happened.211 He was expecting that they would do their normal 3 to 4 platforms a year in 2015 and that it would be business as usual.212

He became aware, after 8 September 2014, that Cal Dive was considering closing its office in Sale. 213

He has only known about the ROV work in 2015 since 8 September 2014. 214

He reported to Mr Barton and therefore had frequent discussions with him but not about the decline in work scope. He had seen that the contractors had changed but not that there had been a decline in the work. As he worked out on platforms where there is not much else going on, he would not have seen a change. 215

He agreed that all ROV employees know that there is absolutely no certainty about future work continuing. 216

On 8 September 2014, he was home in bed sick when Mr Barton called. Mr Barton told him that he was no longer required but that he would try and get him back out there sometime in the new year. Mr Barton gave him a reason for him no longer being required. He did not say much as he was pretty sick. 217

His gastro did not impact on his hearing during the conversation with Mr Barton. He was feeling very sick and very lethargic. He had a pretty good recollection of the conversation. 218

He considered that his employment had been terminated by Mr Barton as sometime in the new year was three - four months away. 219 He did not call Mr Barton back later to ask any questions.220

He took Mr Dunlop’s e-mail to mean that his job/employment was terminated. 221 He had answered Mr Dunlop’s e-mail straight away after he received it but got no response. In this e-mail, he said that Mr Dunlop’s e-mail had come as a bit of a surprise. This was because he was surprised that he was sent an official termination.222 He said that he had been told that he was terminated but he had not been officially terminated.223

He took Mr Dunlop’s e-mail as an official termination rather than “I’ll try and get you back on later on”. 224 He had never before received an official termination for anything and he was quite surprised.225

He was pretty pessimistic about the company offering him further ROV work. 226

(iii) Considerations and conclusions

[68] With respect to its second jurisdictional objection, the company submitted that there had not been a termination at the initiative of the employer. This was because the company had not intended to terminate the employment relationship but rather, had intended on putting Mr Goold back out on the Esso project once the client was not so upset. Further, it was contended that Mr Goold knew that the company had not intended to terminate the employment relationship altogether.

[69] For the Applicant’s part, it was argued that, whilst Mr Barton may have said something about the possibility of work in the new year, it was all a bit vague. Secondly, it was contended that Mr Dunlop’s email was formal written termination of Mr Goold’s employment. This was on the basis that it ended Mr Goold’s Esso ROV work which was all he had done for the past 10 years. The only ROV work that Cal Dive had was said to have been the Esso project. Further, it was stated that no work was offered to Mr Goold until after he had lodged his unfair dismissal claim and then it had been to a lower position.

[70] It is my view that the email from Mr Dunlop, despite the subject being “Termination of Employment”, terminated Mr Goold’s engagement/employment on the Esso project. However, the termination of Mr Goold’s engagement/employment on the Esso project was also, in my view, effectively the termination of Mr Goold’s employment with Cal Dive ie. the employment relationship. This is on the basis that Mr Goold had worked for Fraser Diving/ Cal Dive for about 10 years. The only work he had performed in that time was ROV work on the Esso project. The only ROV work that the company had was the Esso project. Therefore, in terminating Mr Goold’s current engagement/employment in relation to ROV work on the Esso project, the company also terminated Mr Goold’s employment with Cal Dive.

[71] Accordingly, I find that Mr Goold’s employment was terminated at the initiative of the employer.

[72] Having found that Mr Goold had completed the minimum period of employment and that his dismissal was at the initiative of the employer, the company’s two jurisdictional objections are dismissed. An order 227 to this effect will be issued separately.

[73] The matter will now be listed for hearing of the merits of the substantive application, in due course.

Appearances:

Mr J Hooper of Counsel for the Applicant

Mr S White of AMMA for the Respondent

Hearing details:

2015.

Bairnsdale:

February10, 11.

1 Transcript PN 187 and 189 and Exhibit R1 at paragraphs 2 - 3 and 40 - 101

2 Ibid PN 193

3 Ibid PN 193 - 194 and 151 and Exhibit R1 at paragraph 72

4 Ibid PN 196 and ibid at paragraph 74

5 Ibid PN 1551

6 Ibid PN 197 and 1551 and Exhibit R1 at paragraph 69

7 Ibid PN 197

8 Ibid

9 Ibid PN 198

10 Ibid PN 199

11 Ibid PN 1553

12 Ibid PN 1560 and 1579

13 Ibid PN 1555

14 Ibid PN 199

15 Ibid PN 1556

16 Ibid PN 1562

17 [2012] FWA 3453

18 Transcript PN 1563 - 1564 and 1580 - 1583 and Exhibit R1 at paragraphs 42 - 44

19 [2013] FWC 8127

20 [2010] FWAFB 5709

21 Transcript PN 1585 - 1586

22 Exhibit R1 at paragraphs 76 - 79

23 Ibid at paragraphs 41 - 42 and 80 - 83

24 Ibid at paragraphs 84 - 89

25 Ibid at paragraph 90

26 Ibid at paragraphs 93 - 95

27 Ibid at paragraph 43

28 [2010] FWA 2078

29 Exhibit R1 at paragraphs 53 - 55

30 Ibid at paragraph 57

31 Ibid at paragraphs 58 - 62

32 Ibid at paragraphs 63 - 64

33 Transcript PN 200

34 Ibid PN 1552 and 1554 and Exhibit R1 at paragraph 69

35 Ibid PN 1577

36 Exhibit R1 at paragraph 71

37 Transcript PN 1568 - 1569

38 Ibid PN 1570 - 1572

39 Ibid PN 1573 - 1576 and Exhibit R1 at paragraph 65

40 Ibid at paragraphs 73 - 74

41 Ibid at paragraph 70

42 Ibid at paragraph 72

43 Ibid at paragraph 98

44 Ibid at paragraph 97

45 Ibid at paragraphs 99 - 101

46 Transcript PN 249

47 Exhibit R3

48 Transcript PN 308 and 310

49 Ibid PN 376 and 420 - 421

50 Ibid PN 414 - 419

51 Ibid PN 320, 359 - 360 and 439 - 442

52 Ibid PN 406 - 410 and 443

53 Ibid PN 321 and 364

54 Ibid PN 351

55 Ibid PN 352 - 353

56 Ibid PN 361 - 362

57 Ibid PN 339

58 Ibid PN 337 - 338 and 348 - 350

59 Ibid 366 - 367

60 Ibid PN 452

61 Exhibit R3 at paragraph 4

62 Ibid at paragraph 5 and Transcript PN 273, 293 - 294, 375 and 379 - 386

63 Ibid PN 387 - 388

64 Ibid PN 259 - 261, 398 - 399 and 400 - 404 and Exhibit R3 at paragraph 7 and Attachment A

65 Ibid PN 271 - 272 and ibid at Attachment A

66 Ibid PN 391 - 396

67 Ibid PN 428 - 432

68 Exhibits R6 and R8

69 Transcript PN 939

70 Ibid PN 869

71 Ibid PN 940 - 943, 954 and 1184 - 1188

72 Ibid PN 1245 - 1251

73 Ibid PN 870 - 896 and 1115 and Exhibit R7

74 Ibid PN 989

75 Ibid PN 899 - 905

76 Ibid PN 954 - 955

77 Ibid PN 1220 - 1221

78 Ibid PN 956

79 Ibid PN 906 - 909

80 Ibid PN 962

81 Ibid PN 945 and Exhibit R6 at paragraphs 17 - 18

82 Ibid PN 948 - 949 and ibid at paragraph 21

83 Ibid PN 950 - 952

84 Ibid PN 967 - 970

85 Ibid PN 973

86 Ibid PN 974 and 976 - 977

87 Ibid PN 979 and 1005

88 Ibid PN 1005

89 Ibid PN 988

90 Ibid PN 991 - 992

91 Ibid PN 995 - 1002 and 1114

92 Ibid PN 1003 - 1004

93 Ibid PN 1187 - 1197

94 Ibid PN 845 - 846 and Exhibit R6 at paragraph 27

95 Ibid PN 847 and ibid

96 Ibid PN 848 and ibid at paragraph 32

97 Ibid PN 1015 - 1019 and 1132 - 1133 and 1162

98 Ibid PN 1022 - 1023, 1135 and 1145 - 1148 and Exhibit R6 at paragraph 29

99 Ibid PN 1137 - 1142

100 Ibid PN 1024 - 1028, 1136, 1143 and 1256

101 Ibid PN 1024 - 1026

102 Ibid PN 1031

103 Ibid PN 1039 and 1163 and Exhibit R6 at paragraph 31

104 Ibid PN 1164 - 1169

105 Ibid PN 844, 1031 and 1081 - 1082

106 Ibid PN 1081

107 Ibid PN 1084

108 Ibid PN 1113 and 1123

109 Exhibits R4 and R5

110 Transcript PN 693 - 701

111 Ibid PN 746 - 749

112 Ibid PN 750 - 754 and 809

113 Ibid PN 755 - 757

114 Ibid PN 1614

115 Ibid PN 1619 and Exhibit A2 at paragraph 4

116 Ibid PN 1620 - 1622

117 Ibid PN 1623

118 Ibid PN 1626

119 Ibid PN 1627 - 1628 and Exhibit A2 at paragraph 12

120 Ibid PN 1629 and ibid at paragraph 10

121 Ibid PN 1629

122 Ibid PN 1630

123 Ibid PN 1632 - 1633

124 Ibid PN 1637 - 1638

125 Ibid PN 1639 - 1641

126 Ibid PN 1642 and Exhibit A2 at paragraph 26

127 [2006] ACTCA 6

128 Exhibit A2 at paragraphs 16 - 19

129 Exhibit A1

130 Ibid at paragraph 4 and Transcript PN 1313, 1317 - 1318 and 1363 - 1364

131 Ibid PN 1319

132 Ibid PN 1320 - 1322 and 1369

133 Ibid PN 1371 - 1372

134 Ibid PN 1340 - 1342

135 Ibid PN 1347 - 1360

136 Ibid PN 1361 - 1362

137 Ibid PN 1365 - 1367

138 Ibid PN 1487

139 Ibid PN 1450 - 1458

140 Ibid PN 1461 - 1462 and 1464 - 1467

141 Ibid PN 1488 - 1489

142 [2010] FWA 2078 at [76]

143 [2010] FWAFB 5709 at [13]

144 Exhibit R2 at paragraph 17

145 Ibid at paragraphs 18 and 24

146 Transcript PN 201

147 Ibid PN 621 - 623 and 1587

148 Ibid PN 1589

149 Ibid PN 1590 - 1591

150 Ibid PN 734 and Exhibit R5 at paragraph 12

151 Ibid PN 625 - 626

152 Ibid PN 731

153 Ibid PN 735 - 737

154 Ibid PN 742 - 743

155 Ibid PN 745

156 Ibid PN 647 - 650

157 Exhibit R5 at paragraph 1

158 Transcript PN 646 and 651 - 652 and 815

159 Ibid PN 668

160 Ibid PN 669 - 670

161 Ibid PN 671 - 672 and 674

162 Ibid PN 673 - 674

163 Ibid PN 778 and Exhibit R5 at paragraph 2

164 Ibid PN 675 – 676 and Exhibit R2 at paragraph 5

165 Ibid PN 779 - 781

166 Ibid PN 782 - 783 and Exhibit R5 at paragraph 6

167 Ibid PN 679

168 Ibid PN 682 - 687

169 Ibid PN 702 and 717

170 Ibid PN 714 - 716

171 Ibid PN 767 - 772

172 Ibid PN 1007 - 1012

173 Ibid PN 1211 - 1213

174 Ibid PN 854 - 867 and Exhibit R6 at paragraph 6

175 Ibid PN 1090 - 1091

176 Ibid PN 1096

177 Ibid PN 1099

178 Ibid PN 913 and 1180 and Exhibit R8 at paragraph 8 and Attachment A

179 Ibid PN 914

180 Ibid PN 1187 and 1273 - 1275

181 Ibid PN 1242 - 1244

182 Ibid PN 1209 - 1210

183 Ibid PN 1116 - 1118 and 1123 - 1124

184 Ibid PN 1125 - 1129

185 Ibid PN 1208

186 Ibid PN 1259 - 1272

187 Ibid PN 1150 - 1153 and Exhibit R8 at paragraph 7

188 Ibid PN 1154 - 1157

189 Ibid PN 1171 - 1172

190 Ibid PN 1643 and Exhibit A2 at paragraph 44

191 Ibid PN 1644

192 Ibid

193 Ibid PN 1645 and Exhibit A2 at paragraph 45

194 Ibid PN 1646

195 Ibid

196 Ibid PN 1648 - 1649 and Exhibit A2 at paragraph 46

197 Ibid PN 1649 and ibid at paragraph 47

198 Ibid at paragraph 47

199 Ibid

200 Ibid

201 Transcript PN 1323 - 1324

202 Ibid PN 1325, 1377, 1387 and 1531 - 1532

203 Ibid PN 1378 - 1379 and 1383 - 1386

204 Ibid PN 1380 - 1382, 1427 and 1436

205 Ibid PN 1382

206 Ibid PN 1326 - 1328

207 Ibid PN 1429 and 1437

208 Ibid PN 1373 - 1374 and 1391

209 Ibid PN 1375 - 1376 and 1484

210 Ibid PN 1387 - 1389 and 1400

211 Ibid PN 1393 - 1395

212 Ibid PN 1533 - 1534

213 Ibid PN 1414 - 1416 and Exhibit A1 at paragraph 9

214 Ibid PN 1396 and 1423 - 1424

215 Ibid PN 1408 - 1412, 1418 - 1419 and 1426

216 Ibid PN 1483

217 Ibid PN 1329 - 1331, 1493, 1495 and 1503 - 1504

218 Ibid PN 1490 - 1492

219 Ibid PN 1494

220 Ibid PN 1496

221 Ibid PN 1336 - 1337

222 Ibid PN 1500 - 1501

223 Ibid PN 1502

224 Ibid PN 1510

225 Ibid PN 1529

226 Ibid PN 1338

227 PR563086

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Citations

Christopher Goold v Cal Dive International (Australia) Pty Limited [2015] FWC 2302

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Holland v UGL Resources Pty Ltd [2012] FWA 3453

Michael Van Kampen v Transfield Services [2013] FWC 8127

Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic [2010] FWA 2078