Fair Work Ombudsman v D'Adamo Nominees Pty Ltd (No.4)
[2015] FCCA 1178
•8 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v D’ADAMO NOMINEES PTY LTD (No.4) | [2015] FCCA 1178 |
| Catchwords: CONSTITUTIONAL LAW – Workplace relations – whether Federal Act excludes State industrial law – whether State industrial law – whether State law applies to employment generally. EMPLOYMENT LAW – Whether relationship of employer and employee existed – admission as to employment relationship – whether admission could be withdrawn – factors relating to relationship of employer and employee. EMPLOYMENT LAW – Apprenticeship – whether an apprentice is an employee – history of apprentices as employees in Western Australia. PRACTICE AND PROCEDURE – Admission – admission that person an employee – whether Federal Court Rules to be applied – whether Federal Circuit Court Rules insufficient – whether admission able to be withdrawn. WORDS AND PHRASES – “applies to employment generally” – “employee” – expressly provide otherwise” – “electrical assistant” – “apprentice” – “major and substantial test” – “directly assisting”. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AA Electricity Act 1945 (WA) Evidence Act 1995 (Cth), s.48(1) Industrial Training (Apprenticeship Training) Regulations 1981 (WA), Sch.1 Interpretation Act 1984 (WA), s.56(2) Workplace Relations Act 1996 (Cth), Part 7, Division 3, ss.4, 5, 6, 7, 16, 17, 182, 204(1), 208(1), 326, 717(1), 718, 719(6), 722, Sch.8, Part 3, Div.1, cll.31, 32, 33, 34, 38 |
| ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109; (2006) 153 IR 228 Airlite Cleaning Pty Ltd v The Australian Liquor, Hospitality & Miscellaneous Workers’ Union, Western Australian Branch [2001] WASCA 19; (2001) 103 IR 241 Damevski v Giudice & Ors [2003] FCAFC 252; (2003) 133 FCR 438 Deangrove Pty Ltd (Receivers and Managers appointed) v Commonwealth Bank of Australia [2003] FCA 268 Fair Work Ombudsman v McGrath & Anor [2010] FMCA 315; (2010) 195 IR 190 Forbes Engineering (Asia) Pty Ltd v Forbes (No.3) [2007] FCA 1637 Freshwest Corporation Pty Ltd v Transport Workers Union, Industrial Union of Workers, WA Branch (1991) 71 WAIG 1746 Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 In re National Debenture & Assets Corporation [1891] 2 Ch 505 Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16 Thorp v Holdsworth [1876] 3 Ch D 637 Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v Glover (1970) 50 WAIG 704 ALR Kiralfy, Potter’s Historical Introduction to English Law and its Institutions (4th Edn) (London: Sweet and Maxwell Ltd, 1958) |
| Applicant: | FAIR WORK OMBUDSMAN |
| Respondent: | D’ADAMO NOMINEES PTY LTD |
| File Number: | PEG 60 of 2010 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 12 April 2013 |
| Date of Last Submission: | 12 April 2013 |
| Delivered at: | Perth |
| Delivered on: | 8 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A J Power |
| Solicitors for the Applicant: | Mark Davidson, Office of the Fair Work Ombudsman |
| Counsel for the Respondent: | Mr D Howlett |
| Solicitors for the Respondent: | Westmont Legal |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 60 of 2010
| FAIR WORK OMBUDSMAN |
Applicant
And
| D’ADAMO NOMINEES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction and issues
The applicant, the Fair Work Ombudsman,[1] alleges that the respondent, D’Adamo Nominees Pty Ltd,[2] employed Steven Motherwell in an electrical contracting business under the terms of the Electrical Contracting Industry Award 1978 (WA),[3] which, under the provisions of the Workplace Relations Act 1996 (Cth),[4] became a Notional Agreement Preserving a State Award,[5] with effect from 27 March 2006. The FWO alleges that Mr Motherwell:
a)commenced employment as an electrical assistant with D’Adamo Nominees on 20 August 2007;
b)became an apprentice with D’Adamo Nominees on 4 February 2008 until 30 January 2009;
c)was employed both as an electrical assistant and an apprentice under the terms of the ECI Award; and
d)was underpaid various wages and entitlements by D’Adamo Nominees during the period of his employment, in the adjusted sum of $8992.88.
[1] “FWO”.
[2] “D’Adamo Nominees”.
[3] “ECI Award”.
[4] “WR Act”.
[5] “NAPSA”.
In Fair Work Ombudsman v D’Adamo Nominees Pty Ltd (No. 2)[6] the Federal Magistrates Court dismissed a no case to answer submission by D’Adamo Nominees, other than with respect to the first two weeks of Mr Motherwell’s employment at D’Adamo Nominees from 20 August 2007 to the close of business on 31 August 2007.
[6] [2012] FMCA 1217 (“D’Adamo Nominees (No. 2)”).
Liability is the only issue presently to be considered by the Court. In determining issues of liability, many of the same issues arise as arose in D’Adamo Nominees (No. 2), and it has been necessary to address many of those matters again given the necessity to determine whether or not the FWO has proven its case.
Basic legislative scheme
Under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)[7] the WR Act continues to apply to conduct that occurred before 1 July 2009.[8]
[7] “FW Transitional Act”
[8] FW Transitional Act, Sch.2, Item 11(1).
The FWO has standing to bring the current proceedings under the WR Act, as the FWO is a Fair Work Inspector by force of s.701 of the Fair Work Act 2009 (Cth),[9] and pursuant to s.717(1) of the WR Act when read together with the FW Transitional Act, Schedule 18, Item 13(1), Fair Work Inspectors are able to make applications as Workplace Inspectors under the WR Act could have done.
[9] “FW Act”.
The FWO has standing to apply to the Court for penalties and remedies for contraventions of applicable provisions.[10] An Applicable Provision for relevant purposes includes a term of the Australian Fair Pay and Conditions Standard,[11] including s.182 of the WR Act,[12] as well as a term of a collective agreement (a NAPSA may be enforced as if it is a collective agreement).[13] If the alleged contraventions are made out the Court is empowered to make declarations, orders and impose penalties.[14]
[10] WR Act, ss.717-718 (“Applicable Provision”).
[11] “AFPCS”.
[12] WR Act, s.717(a)(ii).
[13] WR Act, Sch.8, cl.43.
[14] Federal Circuit Court of Australia Act 1999 (Cth), s.16 (“FCCA Act”); WR Act, ss.719(6) and 722.
Some basic matters
Mr Motherwell was born on 22 August 1989.
In August 2007 Mr Motherwell approached Luigi D’Adamo, the sole director of D’Adamo Nominees, in relation to commencing an apprenticeship in electrical mechanics. Mr Motherwell was initially employed on a trial basis for a period from 20 August 2007. In D’Adamo Nominees (No. 2) the Court found that the period from 20 to 31 August 2007 was a period during which there was no evidence capable of sustaining a case that Mr Motherwell was employed as an electrical assistant under the ECI Award, because there was no evidence that he was directly assisting another employee covered by the ECI Award.[15]
[15] D’Adamo Nominees (No. 2) at [56]-[59] per Lucev FM.
There does not appear to be any dispute that D’Adamo Nominees is a constitutional corporation, and an employer,[16] which carried on business and had a registered office in, and carried on business within, the State of Western Australia trading as L & A Electrics. Whether D’Adamo Nominees trading as L & A Electrics “carried on the business of supplying domestic electrical wiring services for households”, as pleaded by the FWO[17] and denied by D’Adamo Nominees,[18] and whether, the business is an electrical contracting business, is in dispute in these proceedings.
[16] WR Act, ss.4(1) and 6(1).
[17] Statement of Claim, para.4.
[18] Defence, para.5.
The interpretation of statutes and industrial awards and instruments
In dealing with the issues in these proceedings the Court will be required to interpret both Commonwealth and State statutes and industrial awards and instruments. In relation to the interpretation of statutes and awards and instruments the following principles apply.
Statutes
In interpreting a statute to determine its true meaning a court begins with a consideration of the text, which must be read in context and having regard to the statutory purpose or object.[19] The central task is to discern the meaning of the legislative text, and give effect to the identified purpose, if it is one which is reasonably open on the text. The interpretation best open on the text which achieves the purpose or object of the statute is to be preferred to each other interpretation (even if the purpose or object is not expressly stated in the text).[20]
[19] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 at [46]-[47] per Hayne, Heydon, Crennan and Kiefel JJ; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.
[20] Acts Interpretation Act 1901 (Cth), s.15AA (“Acts Interpretation Act”).
Industrial awards and instruments
Industrial awards and instruments are not themselves laws, but once made, their provisions are given the force of law by the terms of the statute which authorises their making.[21]
[21] Ex parte McLean (1930) 43 CLR 472 at 479 per Isaacs and Starke JJ; Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410 at 425 per Brennan CJ, Dawson and Toohey JJ (“Byrne & Frew”); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 (“City of Wanneroo”).
An industrial award or instrument made by a body invested with statutory authority to do so. In this case the ECI Award was made by the Western Australia Industrial Relations Commission[22] under the Industrial Relations Act 1979 (WA).[23] The ECI Award has then been converted into a NAPSA, which is a federal instrument,[24] by the provisions of the WR Act,[25] and so attracts the application of the Acts Interpretation Act for the purposes of its interpretation.[26]
[22] “WAIRC”.
[23] “IR Act”.
[24] “ECI Award NAPSA”.
[25] WR Act, Sch.8, Pt.3, Div.1, cl.31 (“Schedule 8”).
[26] City of Wanneroo at [53]-[57] per French J.
An industrial award or instrument is to be given its plain and ordinary meaning, and construed in context having regard to the subject matter and text of the instrument as a whole.[27] In an oft quoted passage in Kucks v CSR Limited[28] the Industrial Relations Court of Australia observed that:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.[29]
[27] Construction, Forestry, Mining & Energy Union v John Holland Pty Ltd [2010] FCAFC 90; (2010) 186 FCR 88; Amcor Ltd v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] per Gleeson CJ and McHugh J and [30] per Gummow, Hayne and Heydon JJ (“Amcor”); City of Wanneroo at [53]-[57] per French J.
[28] (1996) 66 IR 182 (“Kucks”).
[29] Kucks at 184 per Madgwick J.
An industrial award or instrument probably never deals with or affects all aspects of the contract of employment, and there must be a contract of employment before an industrial award or instrument can apply.[30]
Industrial Training Act 1975 (WA)[31]
[30] Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 at 423 per Latham CJ (“True”); Byrne & Frew at 421-422 per Brennan CJ, Dawson and Toohey JJ; Visscher v Giudice & Ors [2009] HCA 34: (2009) 239 CLR 361 at [71] per Heydon, Crennan, Kiefel and Bell JJ (“Visscher”).
[31] “IT Act”. The IT Act was repealed by s.50 of the Training Legislation Amendment and Repeal Act 2008 (WA) with effect from 10 June 2009. Apprenticeship regulation now falls under the Vocational Education and Training Act 1996 (WA) (“VET Act”).
The IT Act, and whether it has any application at all, and, if so, to what extent, is a central issue in controversy in these proceedings. The provisions of the IT Act most relevant to this matter are set out hereunder.
In s.4 – Interpretation of the IT Act it is provided that unless the contrary intention appears in the IT Act the following definitions have the following meanings:
apprentice means any person pursuant to this Act bound apprentice to an employer … in an apprenticeship trade by an agreement or by assignment of an agreement;
apprenticeship agreement means an agreement under which a person is bound as an apprentice;
apprenticeship trade means a trade prescribed as an apprenticeship trade under this Act;
Department means the department of the Public Service of the State known as the Department of Labour and Industry or if there is no department of that name the department that is responsible for assisting the Minister in the administration of this Act;
Director means the person for the time being holding or acting in the office of Director of Industrial Training under this Act;
probationer means a person who is employed on probation pursuant to section 29;
industrial trainee means a person, other than an apprentice, who undertakes a course of training in an industrial training trade;
Registrar means the Registrar of Industrial Training appointed under this Act;
trade includes occupation and any branch or branches of a trade or occupation.
Section 7 of the IT Act deals with the administration of the IT Act and provides as follows:
Subject to the Minister, this Act shall be administered by the chief executive officer of the Department.
The IT Act provides for the appointment of a Registrar and the maintenance of a Register of Apprentices in ss.19 and 20 which provide as follows:
s.19
(1) There shall be appointed in the Division and under and subject to Part 3 of the Public Sector Management Act 1994, a Registrar of Industrial Training.
(2) The Registrar shall have such duties and functions as are conferred on him by this Act, and as are conferred on him or directed to be performed by him by the Director.
s.20
(1) The Registrar shall —
(a) maintain a Register of Apprentices and a Register of Industrial Trainees …;
(b) make provision for the examination and testing of apprentices and industrial trainees in accordance with the regulations.
(2) The Register of Apprentices and the Register of Industrial Trainees shall be in the form approved by the Director.
(3) A register referred to in this section, and any certified copy of or extract from such a register, shall be prima facie evidence of the facts stated therein.
(4) A certificate that any person is or is not or was or was not registered as an apprentice or industrial trainee as the case requires under this Act shall, if signed by the Registrar, be prima facie evidence of the facts stated therein.
Part IV of the IT Act deals with trade training.
Section 21 of the IT Act provides that:
The Governor may, by regulation prescribe a trade or a group of traces [sic] as an apprenticeship trade or industrial training trade, or as both an apprenticeship trade and an industrial training trade for the purposes of this Act.
Section 22 of the IT Act provides that:
The provisions of this Act apply to training in any trade or group of trades so long as the regulation prescribing that trade or group of trades as —
(a) an apprenticeship trade; or
(b) an industrial training trade,
or both, as the case may be, remains in force.
Section 24 of the IT Act provides as follows:
An agreement with respect to training in a trade that is prescribed under this Act as an apprenticeship trade or an industrial training trade shall if it is in force on the date that that trade is so prescribed be lodged for registration with the Registrar within one month of that date.
Part V of the IT Act deals with the employment and training of apprentices.
Section 29 of the IT Act deals with employment on probation and provides as follows:
Except as provided by this Act, a person who desires to be employed as an apprentice or industrial trainee in a trade to which this Act applies shall be employed in the first instances on probation for a period of 3 months or such additional period, not exceeding 3 months, as the Director may, on application by the employer approve, for the purpose of determining his fitness to be so employed, and in the event of his becoming an apprentice or industrial trainee in that trade the period of probation shall be counted as service under his apprenticeship agreement or an industrial training agreement.
Section 29A of the IT Act deals with the employment of probationers, and relevantly provides as follows:
(1) No employer shall employ a probationer unless the Director has approved of the employer and the employment of the probationer.
(2) An employer shall within 14 days after he first employs a probationer notify the Registrar in writing of that fact and make application to the Director for approval to establish an apprenticeship or period of industrial training.
(3) On receipt of an application pursuant to subsection (2) the Director shall cause to be made such enquiries as are prescribed as to whether approval should be given to the application and may approve of the application or make such order as he considers appropriate in the particular case, including an order that the probationer be no longer employed by the applicant, and shall notify the applicant of his decision.
Section 30 of the IT Act is a critical provision. It contains general provisions as to apprenticeship agreements, and relevantly provides as follows:
(1) The following provisions apply with respect to every apprenticeship agreement and every industrial training agreement —
(a) the term of the apprenticeship or period of industrial training shall be as prescribed;
(b) the agreement shall be in the prescribed form;
(c) except as otherwise provided by this Act, the parties to the agreement shall be the employer, the apprentice or industrial trainee and the parent or guardian of the apprentice or industrial trainee but if the Director is satisfied that it is in the interest of the employer and the apprentice or industrial trainee the Director may by endorsement on the agreement consent to it being executed only by the employer and the apprentice or industrial trainee;
(d) the agreement shall not be deemed to be invalid by reason only of not being under seal;
(e) the agreement duly executed shall be lodged with the Registrar for registration as required by this Act and the Registrar shall retain the agreement during the term of the agreement;
(f) 3 copies of the agreement as executed shall be prepared by the Division, one of which shall be given to the employer and one to the apprentice or industrial trainee and one to the parent or guardian.
Section 31 of the IT Act deals with the registration of apprenticeship agreements and provides as follows:
(1) Subject to the provisions of sections 32 and 32A, a person shall be deemed not to be employed as an apprentice or industrial trainee in a trade to which this Act applies unless the apprenticeship or industrial training agreement entered into by that person is registered as required under this Act.
(2) Application for the registration of an agreement shall be made to the Registrar within 14 days of the execution of the agreement.
Section 32 of the IT Act deals with the commencement of service under an apprenticeship agreement and provides as follows:
Service under an apprenticeship or industrial training agreement commences on the day that the apprentice or industrial trainee commences employment as such.
Section 33 of the IT Act deals with apprentices attending classes to obtain instruction and the obtaining of instruction by correspondence as prescribed, as well as the requirement of the employer to grant the apprentice leave of absence without deduction of wages to enable the apprentice to attend to classes and instruction by correspondence, and the training of apprentices by an employer in accordance with an accredited course or skills training programme.[32]
[32] IT Act, s.33(1), (2) and (3).
Section 34 of the IT Act deals with the transfer of employment of apprentices and relevantly provides as follows:
(1) Where all parties agree, the employment of an apprentice or industrial trainee may be transferred from one employer to another employer.
(2) Where any party to a proposed transfer of the employment of an apprentice or industrial trainee from one employer to another is not willing to consent to enter into a formal assignment the Director may authorize the transfer.
(3) Where the transfer of the employment of an apprentice or industrial trainee from one employer to another and the assignment of the apprenticeship or industrial training agreement is authorized by the Director, and the employment of that apprentice or industrial trainee is transferred from the first to the second employer but an assignment is not executed within one month after the apprentice or industrial trainee is transferred, the Director may execute an assignment on behalf of the party in default, and any such person shall thereupon for the purposes of this Act be deemed to have made and accepted the assignment.
…
(5) A transfer of employment in accordance with this section shall be registered with the Registrar.
Section 37 of the IT Act provides as follows:
(1) Subject to subsection (2), no apprentice or industrial trainee shall be discharged from employment by an employer for alleged misconduct unless the parties to the relevant apprenticeship agreement or industrial training agreement consent to the dismissal or the agreement is cancelled by order of the Director on the application of the employer.
(2) An employer may suspend an apprentice or industrial trainee for alleged misconduct but shall, within 7 days of the date of suspension, apply to the Director for suspension or cancellation of the relevant apprenticeship agreement or industrial training agreement.
(3) Upon an application by an employer under subsection (1) or subsection (2) the Director may, after following the procedure prescribed, —
(a) suspend the operation of the agreement for such period and on such conditions as he thinks fit;
(b) cancel the agreement; or
(c) order the employer to reinstate the apprentice or industrial trainee and make such order as to the payment of wages to the apprentice or industrial trainee during any period of suspension as he thinks fit.
Section 37C of the IT Act provides as follows:
A person aggrieved by a decision of the Director in the exercise of the jurisdiction conferred upon him by sections 29A, 34(2) and (3), and 37 may appeal to the Commission.
Section 42(1) of the IT Act contains a general power vested in the Governor to make such regulations as are necessary or expedient for the purposes of giving effect to the provisions or objects of the IT Act, and without limiting that general power also prescribes in s.42(2) of the IT Act that regulations may be made in relation to the following matters:
(a) provide for the registration of apprentices or industrial trainees;
(b) prescribe trades as apprenticeship trades or industrial training trades for the purposes of this Act;
…
(ea) provide for the variation by the Director of the prescribed period of apprenticeship;
(f) provide for the extension, variation, suspension and cancellation of apprenticeship … agreements;
(g) provide for the transfer of apprenticeship … agreements;
…
(ib) prescribe, in relation to a particular place of employment, the maximum number of apprentices or industrial trainees who may be employed by an employer in an apprenticeship trade or industrial training trade in proportion to the number of tradesmen employed by that employer in that trade and provide that where the training facilities of a particular employer are adequate for the purpose the Director may approve the employment by that employer of a greater number of apprentices or industrial trainees than would otherwise be permitted.
IT Act – whether an excluded State industrial law
As indicated above a central issue in this matter is whether the IT Act applies, at all, or if so, to what extent.
At paragraph 12 of the Defence D’Adamo Nominees submits that:
b.At the date that the Employee [Mr Motherwell] commenced employment the … [IT Act] and associated Regulations had no application to the employment of the Employee because of the effect of s 16 of the … [WR Act] which was to apply the provisions of the … [WR Act] to the exclusion of the … [IT Act] so far as it would otherwise apply in relation to an employee or employer.
For the purposes of this aspect of the argument whether Mr Motherwell entered into an apprenticeship (if he entered into one at all) to which the IT Act might have applied, and the date on which he did so, is immaterial.
D’Adamo Nominees’ argument, as it was developed in final submissions, was that s.16 of the WR Act applied to the exclusion of a State or Territory industrial law so far as it would otherwise apply in relation to an employee or employer, and that a State or Territory industrial law was one which applied to employment generally and deals with leave other than long-service leave, and also State laws providing for the variation or setting aside of rights and obligations arising under a contract of employment. D’Adamo Nominees says that:
a)s.31 of the IT Act provides for the registration of apprenticeship agreements;
b)s.33(2) of the IT Act deals with leave of absence for attendance at educational and training programmes;
c)s.34 of the IT Act provides for the transfer of apprenticeships, and, therefore, the transfer of employment; and
d)s.37 of the IT Act provides for the referral of disputes to the WAIRC.
D’Adamo Nominees also submitted that s.4(1)(a)(iii) of the WR Act which provides for an act of a State or Territory that applies to employment generally, and has one or more of the following as its main purpose or one of its main purposes, namely, regulating workplace relations, including industrial matters, industrial disputes and industrial action within the ordinary meaning of those expressions, meant that:
a)s.29A of the IT Act dealing with the employment of probationers;
b)s.29B of the IT Act dealing with the part-time employment of apprentices;
c)s.33(2) of the IT Act dealing with leave of absence without deduction from wages for educational and training purposes;
d)s.34 of the IT Act dealing with the transfer of apprenticeships;
e)s.37 of the IT Act dealing with dispute resolution and referral to the WAIRC; and
f)s.42 of the IT Act permitting regulations to be made, and in particular, in s.42(2)(c) dealing with the minimum number of hours of employment for a probationer, apprentice or industrial trainee and extends to the Industrial Training (General Apprenticeship) Regulations 1981 (WA),[33] which D’Adamo Nominees says are made under s.42(2)(c) of the IT Act,
and were all provisions caught by s.4(1)(a)(iii) and therefore s.16(1) of the WR Act.
[33] “IT General Apprenticeship Regulations”.
D’Adamo Nominees also relies on s.4(1)(c) of the WR Act, and of the definition of “State” or “Territory” industrial law as covering the regulations made under the IT Act as instruments of a legislative character, applying generally to employees and employers and to all of their apprentices and trainees throughout the State, and excluding the class or otherwise of non-apprentices for the purposes of the definition of “applies to employment generally” under s.4(1) of the WR Act.
D’Adamo Nominees further submitted that s.16(2)(b) of the WR Act, which excludes from the operation of s.16(1) of the WR Act any law prescribed by the Workplace Relations Regulations 2006 (Cth) (“WR Regulations”), had no relevant effect because the WR Regulations only applied to the extent of a remedy arising from the suspension, cancelation or termination of an apprenticeship agreement in circumstances contrary to law or relating to the arrangements under the agreement, but, that otherwise, the IT Act was excluded from applying to Mr Motherwell for all other purposes.
D’Adamo Nominees submits that the IT Act matters relating to apprentices are not listed in the non-excluded matters in s.16(3) of the WR Act.
D’Adamo Nominees submits that s.17 of the WR Act providing that an award or workplace agreement (which does not include a NAPSA), prevails over State or Territory laws, with certain exceptions, does not apply. In relation to the exception, D’Adamo Nominees submits that the exception for State or Territory laws dealing with training arrangements, and that awards are subject to a law of a State or Territory dealing with training arrangements does not have any effect because the IT Act (which it is conceded is a law with respect to training arrangements) has already been excluded to the extent of any inconsistency.
D’Adamo Nominees submits that there is nothing under the ECI Award, or otherwise under federal law, that requires the registration of an apprentice under the IT Act. Therefore D’Adamo Nominees argues that if the Court finds that Mr Motherwell was an apprentice it can only be by operation of a common law contract of apprenticeship. That therefore means that there is no need to find that he was an electrical assistant, for Mr Motherwell being an electrical assistant only arises in the context of the non-registration of the apprenticeship agreement. D’Adamo Nominees submits that there is a direct inconsistency, articulated at paragraph 12(d) of the Defence which provides that Mr Motherwell was an apprentice due to the contract between him and D’Adamo Nominees at common law, and between either the WR Act or the ECI Award NAPSA and the IT Act. Therefore, it is submitted that the IT Act is directly inconsistent with the WR Act, or the ECI Award NAPSA, or the relevant APCS, and for those reasons the IT Act cannot operate to invalidate the agreed employment as an apprentice under the application of Commonwealth laws, and cannot be used to nullify the employment contract made under the WR Act and instruments created by the WR Act, including the ECI Award NAPSA which contains a classification of apprentice.
The FWO submits that in relation to the IT Act, and whether or not it applies to Mr Motherwell’s employment:
a)the WR Act applies to the exclusion of “State or Territory industrial laws”;[34]
b)“State or Territory industrial law” is relevantly defined to include “an Act of a State or Territory that applies to employment generally” and has one of the purposes listed in s.4 of the WR Act as one of its main purposes;[35]
c)a State law “applies to employment generally, if it applies to all employers and employees in the State (or all employers and employees with identified exceptions)”;[36]
d)the IT Act applies only to apprentices and industrial trainees in Western Australia, and employers of apprentices and industrial trainees;
e)the IT Act is therefore not a State or Territory industrial law excluded by the WR Act;
f)further, the WR Act provides for the continued operation of State laws in relation to training arrangements;[37] and
g)the IT Act continued to regulate apprenticeships in electrical mechanics (the course done by Mr Motherwell) in Western Australia after 27 March 2006. Electrical mechanics was prescribed as an “apprenticeship trade” for the purposes of the IT Act.[38]
[34] WR Act, s.16(1)(a).
[35] WR Act, s.4(1), para.(b) of the definition of “State or Territory industrial law”.
[36] WR Act, s.4(1).
[37] WR Act, s.17(2).
[38] Industrial Training (Apprenticeship Training) Regulations 1981 (WA), Sch.1.
Relevantly, ss.16 and 17 of the WR Act provided as follows:
16 (1) This Act is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer:
(a) a State or Territory industrial law;
(b) a law that applies to employment generally and deals with leave other than long service leave;
(c) …
(d) a law providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;
(e) ...
(2) State and Territory laws that are not excluded However, subsection (1) does not apply to a law of a State or Territory so far as:
a) …
(b) the law is prescribed by the regulations as a law to which subsection (1) does not apply; or
(c) the law deals with any of the matters (the non‑excluded matters) described in subsection (3).
(3) The non‑excluded matters are as follows:
(a) superannuation;
(b) workers compensation;
(c) occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety);
(d) matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers);
(e) child labour;
(f) long service leave;
(g) the observance of a public holiday, except the rate of payment of an employee for the public holiday;
(h) the method of payment of wages or salaries;
(i) the frequency of payment of wages or salaries;
(j) deductions from wages or salaries;
(k) industrial action (within the ordinary meaning of the expression) affecting essential services;
(l) attendance for service on a jury;
(m) regulation of any of the following:
(i) associations of employees;
(ii) associations of employers;
(iii) members of associations of employees or of associations of employers.
(4) This Act excludes prescribed State and Territory laws This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations for the purposes of this subsection.
(5) To avoid doubt, subsection (4) has effect even if the law is covered by subsection (2) (so that subsection (1) does not apply to the law). This subsection does not limit subsection (4).
(6) Definition In this section:
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
17 (1) An award or workplace agreement prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency.
(2) However, a term of an award or workplace agreement dealing with any of the following matters has effect subject to a law of a State or Territory dealing with the matter, except a law that is prescribed by the regulations as a law to which awards and workplace agreements are not subject:
(a) …
(b) …
(c) training arrangements;
(d) a matter prescribed by the regulations for the purposes of this paragraph.
(3) …
The WR Act also defines the following terms in s.4(1):
applies to employment generally : a law of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:
(a) all employers and employees in the State or Territory; or
(b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.
For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.
award means a pre-reform award.
notional agreement preserving State awards has the meaning given by clause 1 of Schedule 8.
pre-reform award means an instrument that has effect after the reform commencement under Item 4 of Schedule 4 to the Workplace Relations Amendment (Work Choice) Act 2005.
State or Territory industrial law means:
(a) any of the following State Acts:
….
(iii) the Industrial Relations Act 1979 of Western Australia;
….
(b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:
(i) regulating workplace relations (including industrial matters, industrial disputes and industrial action, within the ordinary meaning of those expressions);
(ii) providing for the determination of terms and conditions of employment;
(iii) providing for the making and enforcement of agreements determining terms and conditions of employment;
(iv) providing for rights and remedies connected with the termination of employment;
(v) …
(c) an instrument made under an Act described in paragraph (a) or (b), so far as the instrument is of a legislative character; or
(d) a law that:
(i) is a law of a State or Territory; and
(ii) is prescribed by regulations for the purposes of this paragraph.
State or Territory training authority means a body authorised by a law or award of a State or Territory for the purpose of overseeing arrangements for the training of employees.
training arrangement means a combination of work and training that is subject to a training agreement or a training contract between the employee and employer that is registered:
(a) with the relevant State or Territory training authority; or
(b) under a law of a State or Territory relating to the training of employees.
workplace agreement means:
(a) an ITEA; or
(b) a collective agreement;
and includes a document that the Court has ordered under section 412A is to have effect as a workplace agreement.
The Court notes that for the purposes of the definition of “workplace agreement” the following definitions are relevant:
ITEA: see individual transitional employment agreement.
individual transitional employment agreement orITEA has the meaning given by section 326.
collective agreement means:
(a) an employee collective agreement; or
(b) a union collective agreement; or
(c) an employer greenfields agreement; or
(d) a union greenfields agreement; or
(e) a multiple‑business agreement.
The definition of “individual transitional employment agreement or ITEA” in s.326 of the WR Act does not take the matter further.
Section 16(1)(a) of the WR Act does not define the IT Act as a State or Territory law, and therefore does not exclude the IT Act. It does exclude the IR Act, but the IR Act is only important for:
a)historical reasons related to whether apprentices are employees in Western Australia; and
b)issues related to the scope of coverage of the ECI Award up to and including 26 March 2006, that is, prior to the WR Act taking effect,
as set out below in these Reasons for Judgment.
Section 16(1)(b) of the WR Act has two elements. The first is that the law to be excluded must be a law that “applies to employment generally”, and the second is that it “deals with leave other than long service leave”. The use of the conjunctive “and” indicates that both elements must be met before the law to which it is sought to be applied is excluded.
In order to be a law of a State or Territory that “applies to employment generally”, the law must:
a)apply to all employers and employees in the State concerned; or
b)apply to all employers and employees in the State concerned except those identified, by reference to a class or otherwise, by the State law.
In this case the IT Act does not apply to all employers and employees in Western Australia. Specifically, it only applies to employees who are apprentices and industrial trainees. It therefore does not meet the definition in paragraph (a) of “applies to employment generally” in s.4(1) of the WR Act. Nor does the IT Act apply to all employers and employees except for those identified by reference to a class or otherwise. The only class or classes identified in the IT Act are “apprentices” and “industrial trainees”, and they are clearly not all employees in Western Australia. The IT Act does not also specifically identify any exceptions to the limited application that it has. It is plain that the exceptions referred to must be exceptions from the “all employers and employees in the State” to which paragraph (b) of the definition of “applies to employment generally” applies. D’Adamo Nominees’ argument that the definition applied because the IT Act applied to apprentices and industrial trainees and then identified a class, being non-apprentice or industrial trainee employees in Western Australia, is a reversal of the relevant test. The definition applies first to all employers and employees in the State, and the exception is an exception to that, not the other way around.
In the above circumstances there is no scope for the application of s.16(1)(b) of the WR Act to exclude the IT Act.
In relation to s.16(1)(d) of the WR Act, the IT Act is not a law thereby excluded, because the IT Act does not provide for the variation or setting aside of rights and obligations in relation to apprentices (who for reasons set out below in these Reasons for Judgment are at least covered by the phrase “another arrangement for employment”) that a court or Tribunal finds is “unfair”. Firstly, whatever powers the Director of Industrial Training under the IT Act has, or whatever powers the tribunal, in this case the WAIRC, are given under the IT Act, those powers are not predicated on any finding of unfairness. The Director is not a court or tribunal, but rather a person holding office under the IT Act: see definition of “Director” in s.4(1) of the IT Act. The WAIRC is a “tribunal” with limited powers on appeal from a decision by the Director. That power is granted under s.37C of the IT Act which provides that a person aggrieved by a decision of the Director exercising jurisdiction under ss.29A, 34(2) and (3) and 37 may appeal to the WAIRC.
The criterion for the appeal to the WAIRC is not unfairness, but rather that the person affected by the decision of the Director is “aggrieved”. Whether a person is “aggrieved” is to be determined objectively by reference to the decision of the Director.[39] A person may be aggrieved where the relevant Act directly affects their professional or vocational interests.[40] It may be that the person who is aggrieved is aggrieved as a consequence of an act of unfairness, but that is not the basis upon which the IT Act deals with the right to appeal the decision of the WAIRC, and the IT Act does not expressly provide for the variation or setting aside of rights and obligations arising in respect of an apprentice’s or industrial trainee’s employment by the WAIRC, either at all, or on the basis of unfairness. Section 16(1)(d) of the WR Act does not therefore exclude the operation of the IT Act.
[39] Cameron v Human Rights and Equal Opportunity Commission & Anor (1993) 46 FCR 509 at 515 and 519 per Beaumont and Foster JJ (with whom French J agreed at 519-520).
[40] Ogle & Anor v Strickland & Ors (1987) 13 FCR 306.
The IT Act is not expressly prescribed by the WR Regulations as a law to which subsection (1) does not apply under s.16(2)(b) of the WR Act. Nor are any of the non-excluded matters referred to in s.16(3) applicable so as to exclude the application of s.16(1) of the WR Act under s.16(2)(c) of the WR Act.
Section 17 of the WR Act is not relevant because it only applies to awards or workplace agreements, and the ECI Award NAPSA is neither of those.[41]
[41] WR Act, s.17(1).
IR Act
The IR Act is an excluded State law for the purposes of s.16(1) of the WR Act. The IR Act, and its predecessor the Industrial Arbitration Act 1912 (WA),[42] are only of interest in these proceedings insofar as they provided, up until the time that the WR Act took effect, that apprentices were deemed to be employees for the purposes of the IR Act, and previously, the IA Act, and made provision with respect to the scope of coverage of awards made by the WAIRC. Those issues are dealt with further below in these Reasons for Judgment.
WR Act – creation of NAPSA
[42] “IA Act”.
Under Schedule 8 of the WR Act a NAPSA is an agreement that is taken to come into operation under cl.31 of Schedule 8. Clause 31 of Schedule 8 of the WR Act provides as follows:
If, immediately before the reform commencement, the terms and conditions of employment of one or more employees in a single business or a part of a single business:
(a)were not determined under a State employment agreement; and
(b)were determined, in whole or in part, under a State award (the original State award) or a State or Territory industrial law (the original State law):
a notional agreement preserving State awards is taken to come into operation on the reform commencement in respect of the business or that part of the business.
Clauses 32 and 33 of the WR Act deal with who is bound by, and whose employment is subject to, a NAPSA, in the following terms:
Who is bound by a notional agreement preserving State awards?
32 (1) Current employees Any person who:
(a) immediately before the reform commencement, was bound by, or a party to, the original State award or original State law; and
(b) is one of the following:
(i) an employer in the business, or that part of the business;
(ii) an employee who is employed in the business, or that part of the business, who was so employed immediately before the reform commencement, who was not bound by, or a party to, a State employment agreement at that time and whose employment was not subject to such an agreement at that time;
…
is bound by the notional agreement.
(2) Future employees If:
(a) a person is employed in the business or that part of the business after the reform commencement; and
(b) under the terms of the original State award or the original State law, as in force immediately before the reform commencement, the person would have been bound by that award or law; and
(c) the person is not bound by a preserved State agreement;
the person is bound by the notional agreement.
Whose employment is subject to a notional agreement preserving State awards?
33 (1) Current employees The employment of a person in the business or that part of the business is subject to the notional agreement, if:
(a) that employment was, immediately before the reform commencement, subject to the original State award or the original State law; and
(b) that employment was not subject to a State employment agreement at that time.
(2) Future employees If:
(a) a person is employed in the business, or that part of the business, after the reform commencement; and
(b) under the terms of the original State award or the original State law, that employment would have been subject to that award or that law; and
(c) that employment is not subject to a preserved State agreement;
that employment is subject to the notional agreement.
It is not in dispute in these proceedings that the effect of Schedule 8 of the WR Act was to convert the ECI Award as at 26 March 2006 into the ECI Award NAPSA as at 27 March 2006.
Was Mr Motherwell an employee of D’Adamo Nominees?
Whether Mr Motherwell was an employee of D’Adamo Nominees is now said to be in dispute in these proceedings.
D’Adamo Nominees’ arguments
D’Adamo Nominees argued in closing submissions that:
a)despite the Defence admitting that Mr Motherwell was an employee of D’Adamo Nominees, that was now open to doubt, as there was insufficient evidence to find that Mr Motherwell was an employee of D’Adamo Nominees; and
b)on the evidence it was possible that Mr Motherwell was an employee of Mr Zampogna (who was an electrician with whom Mr Motherwell worked), or a company operated by Mr Zampogna, during the time that Mr Motherwell worked with Mr Zampogna. Further, that that possibility was not inconsistent with Mr Motherwell also being a notional employee of D’Adamo Nominees, albeit dormant, whilst he was “working” with Mr Zampogna.
Pleadings
At paragraph 7 the Statement of Claim pleads that:
Steven Motherwell (Employee) was employed by the Respondent [D’Adamo Nominees] from 20 August 2007 to 30 January 2009 (Employment).
At paragraph 9 the Statement of Claim pleads that:
From 20 August 2007 to 3 February 2008 the Employee [Mr Motherwell] was employed by the Respondent [D’Adamo Nominees] in the role of Electrical Assistant.
Particulars
Under Clause 5 of the NAPSA, “Electrical Assistant” means an employee directly assisting any other employee covered by the Award.
The Employee’s duties included accompanying a qualified electrician on site and providing assistance as required, carrying out some basic wiring under supervision, collecting and delivering wiring and other supplies, and basic sweeping and tidying tasks.
At paragraph 10 the Statement of Claim pleads that:
From 4 February 2008 to 30 January 2009 the Employee [Mr Motherwell] was employed by the Respondent [D’Adamo Nominees] as an apprentice in the trade of electrical mechanics.
Particulars
Pursuant to section 31 of the Industrial Training Act 1975 (WA) (IT Act), a person shall not be deemed to be employed as an apprentice in a trade to which that Act applies unless the apprenticeship agreement is registered as required under the Act.
The Respondent and the Employee executed an apprenticeship agreement on 30 April 2008 (Agreement).
It was registered with the Department of Education and Training on 5 May 2008.
The Agreement stated that the Employee was to learn the trade of electrical mechanics for a term of 48 months, commencing on 4 February 2008.
The trade of electrical mechanics is listed in the Industrial Training (Apprenticeship Training) Regulations 1981 (WA) as a trade to which the IT Act applies.
In response to paragraph 7 of the Statement of Claim paragraph 8 of the Defence pleads that:
The Respondent [D’Adamo Nominees] admits paragraph 7 of the SOC [Statement of Claim].
In response to paragraph 9 of the Statement of Claim the Defence denies each and every allegation contained in paragraph 9, save to say that the definition of “Electrical Assistant” was in the terms pleaded in paragraph 9 of the Statement of Claim.
In response to paragraph 10 of the Statement of Claim paragraphs 12 and 13 of the Defence plead that:
12. Save to say that the operation of section 31 of the Industrial Training Act 1975 (WA) (“ITA”) is subject to sections 32 and 32A of the ITA, and is otherwise in the terms pleaded, the Respondent denies each and every allegation in paragraph 10 of the SOC and further says:
a.The Respondent intended to employ the Employee as an apprentice;
b.At the date that the Employee commenced employment the ITA and associated Regulations had no application to the employment of the Employee because of the effect of section 16 of the WRA which was to apply the provisions of the WRA to the exclusion of the ITA so far as it would otherwise apply in relation to an employee or employer.
c.The Employee was not an Apprentice for the purposes of the ITA.
d.If the Employee was an Apprentice it was due to the contract between the Employee and Respondent at common law and not the operation of the ITA.
13. Further and in the alternative, even if the ITA did have application (which is denied):
a.The Apprenticeship Agreement (“AA”), as pleaded, had no effect because the Employee’s mother did not execute it as she was required by law to do by s30(1)(c) of the ITA and it was not duly executed for the purposes of s30(1)(e) of the ITA;
b.Further and in the alternative, even if the AA did have effect (which is denied) it had effect from the day that the employee commenced employment with the respondent because of the provisions of sections 31 and 32 of the ITA and not from the date that the AA was registered or executed or alternatively 4 February 2008.
c.Further and in the alternative, even if the AA did not have effect from the commencement of the employment but did have effect (which is denied) the probation period was included in the term of the Apprenticeship by virtue of the combined operation of sections 29 and 29A of the ITA and Regulation 10 of the Industrial Training (General Apprenticeship) Regulations 1981 (“Regulations”) and that was earlier than 4 February 2008 as pleaded.
The Defence therefore admits that Mr Motherwell was an employee of D’Adamo Nominees, but denies that he was employed:
a)as an electrical assistant in the period from 20 August 2007 to 3 February 2008. By reason of the judgment in D’Adamo Nominees (No. 2) the Court is now only concerned with the period 3 September 2007 to 3 February 2008;[43] and
b)at all, as an apprentice.
[43] D’Adamo Nominees (No. 2) at [56]-[57] and [79] per Lucev FM.
In summary, the Defence admits that Mr Motherwell was an employee of D’Adamo Nominees during the periods under consideration, but denies that he was employed as an electrical assistant or an apprentice.
Pleadings – withdrawal of an admission
The purpose of pleadings is to narrow and define the issues, so that parties know the real issues to be decided at hearing.[44]
[44] Banque Commerciale SA (in liq) v Akhill Holdings Ltd (1990) 169 CLR 279 at 287-288 per Brennan J; McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 at [21] per Weinberg J. This has been the purpose of the system of pleadings, as it has been understood, since at least shortly after the introduction of the judicature system: Thorp v Holdsworth [1876] 3 Ch D 637 at 639 per Jessell MR, and probably as long ago as the 16th Century when the system of written pleadings began to replace the practice of oral pleading: see ALR Kiralfy, Potter’s Historical Introduction to English Law and its Institutions (4th Edn) (London: Sweet and Maxwell Ltd, 1958) pages 335 and 342.
The question of whether Mr Motherwell was or was not an employee of D’Adamo Nominees was not in dispute when evidence was taken at hearing. Thus it was unnecessary for the FWO to lead evidence that Mr Motherwell was an employee of D’Adamo Nominees, although, in the course of proving other issues, there was (as outlined below) evidence led by the FWO that he was an employee of D’Adamo Nominees. The admission in the Defence was specifically drawn to the attention of the parties, and relied upon by the Court, in D’Adamo Nominees (No. 2).[45]
[45] D’Adamo Nominees (No. 2) at [54] per Lucev FM.
D’Adamo Nominees:
a)at no stage sought to withdraw the admission made in the Statement of Claim, either formally or informally, even after it was adverted to in the no case to answer submissions, and then the judgment in D’Adamo Nominees (No. 2); and
b)never made an application to amend the Defence, to assert that Mr Motherwell was not an employee of D’Adamo Nominees. Even after the Court observed in D’Adamo Nominees (No. 2) that the submission that Mr Motherwell was not an employee of D’Adamo Nominees was “utterly without merit”[46] the issue of Mr Motherwell not being an employee was raised again in D’Adamo Nominees’ closing submissions on liability, without any endeavour being made to amend the pleadings.
[46] D’Adamo Nominees (No. 2) at [54] per Lucev FM.
Rule 15.30 of the Federal Circuit Court Rules 2001 (Cth)[47] provides as follows:
If an admission is made by a party, the Court may, on the application of another party, make an order to which the party applying is entitled on the admission.
Effectively, what the FWO now seeks are orders which rely, in part, on the admission made by D’Adamo Nominees that Mr Motherwell was an employee of D’Adamo Nominees.
[47] “FCC Rules”. At the time of the liability hearing the FCC Rules were the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”). For present purposes there is no relevant difference between the FCC Rules and the FMC Rules.
Withdrawal of an admission is not dealt with in the FCC Rules, but was dealt with in the Federal Court Rules 1976 (Cth)[48] where O.22 r.4(2) of the FC Rules 1976 provided that a party could not withdraw an admission operating for the benefit of another party without the consent of that other party or the leave of the Court. Rule 26.11 of the Federal Court Rules 2011 (Cth)[49] provides as follows:
[48] “FC Rules 1976”.
[49] “FC Rules 2011”.
(1) A party may, at any time, withdraw a plea raised in the party's pleading by filing a notice of withdrawal, in accordance with Form 47.
(2) However, a party must not withdraw an admission or any other plea that benefits another party, in a defence or subsequent pleading unless:
(a) the other party consents; or
(b) the Court gives leave.
(3) The notice of withdrawal must:
(a) state the extent of the withdrawal; and
(b) if the withdrawal is by consent -- be signed by each consenting party.
The effect of both the former O.22 r.4(2) of the FC Rules 1976 and r.26.11 of the FC Rules 2011 is that a party must specifically obtain the leave of the Court or the consent of the other party to withdraw an admission to which those rules applied.[50] Rule 26.11 of the FC Rules 2011 applied at the time of the liability hearing, and can be applied by this Court by reason of r.1.05(2) of the FCC Rules which provides that if the FCC Rules are, relevantly, “insufficient”, the Court may apply the FC Rules in whole or in part and modified or dispensed with as necessary. In this case, where the FCC Rules do not provide for the withdrawal of an admission, they are insufficient, and it is therefore necessary, in dealing with an attempt to withdraw an admission, to apply r.26.11 of the FC Rules 2011.
[50] Forbes Engineering (Asia) Pty Ltd v Forbes (No. 3) [2007] FCA 1637 at [9] per Collier J.
Before granting leave for an admission to be withdrawn the Court must be satisfied that:
a)an error or mistake by or on behalf of the party seeking to withdraw the admission has been demonstrated;
b)there is a sensible explanation for the making of the admission, and that explanation has been provided, based on evidence of a solid and substantial character; and
c)no injustice will be occasioned to the other party by the withdrawal of the admission, other than hardship by delay or costs which can be accommodated by an appropriate order for costs.[51]
[51] Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd [2000] FCA 1732; (2000) 191 ALR 579 at [44] per Mansfield J (“Murran Investments”), referring to Celestino v Celestino (unreported, Full Court of Federal Court of Australia, Spender, Miles and von Doussa JJ, 16 August 1990) at pages 8-10.
In Murran Investments the second applicant swore two affidavits asserting the relevant admission had been made in error and seeking to explain how the admission came to be made in error.[52] The Federal Court found that:
a)the applicants had established that the factual allegations had been made in error on the basis of a misunderstanding by the second applicant as to the performance of the franchise business;
b)the misunderstanding was explained by the second applicant’s limited role in the business prior to her husband’s sudden death.[53]
[52] Murran Investments at [47] per Mansfield J.
[53] Murran Investments at [51] per Mansfield J.
Moreover, in Murran Investments the Federal Court found that there was no particular injustice to the respondents if the admission was withdrawn.[54] In that case pleadings were not closed and there was no suggestion that a hearing of the matter was imminent.[55]
[54] Murran Investments at [51] per Mansfield J.
[55] Murran Investments at [3]-[20] per Mansfield J.
In Deangrove Pty Ltd (Receivers and Managers appointed) v Commonwealth Bank of Australia[56] it was sought, after three days of hearing, to withdraw an admission that a director had executed a guarantee of the company’s obligations under a bill discount facility provided by the respondent bank. The withdrawal arose because the director did not recognise the signature on the guarantee when it was put to him in cross-examination, and ultimately he denied that the signature purporting to be his on the guarantee was in fact his signature.[57]
[56] [2003] FCA 268 (“Deangrove”).
[57] Deangrove at [3] and [5]-[19] per Sackville J.
In Deangrove the Federal Court comprehensively canvassed the principles relating to the withdrawal of an admission in the following paragraphs, which this Court, with respect, adopts:
29 The principles relating to the circumstances in which a party should be given leave to withdraw an admission were addressed by Rogers CJ Comm D in Coopers Brewery Ltd v Panfida Foods Ltd [1992] 26 NSWLR 738. In that case, admissions were made by the defendant's legal representatives after consent orders were made requiring the defendant either to admit certain matters or to serve an expert's report in support of a denial of those matters. Rogers CJ rejected (at 746) the approach taken in H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694, as the product of "another age and ... other circumstances". In Clark v Wilkinson, Lord Denning MR had said this (at 703):
" An admission made by counsel in the course of proceedings can be withdrawn unless the circumstances are such as to give rise to an estoppel. If the other party has acted to his prejudice on the faith of it, it may not be allowed to be withdrawn ... . But otherwise an admission can be withdrawn. For example, an admission is often made by error in a pleading. It can be withdrawn if the other party has not been prejudiced, or, indeed, if any prejudice can be cured by compensation in costs."
Rogers CJ, by contrast, said (at 750) that an admission made by counsel in the proceedings
“should not be permitted easily to be withdrawn so as to make the procedure [requiring a party, in certain circumstances, to make admissions] meaningless”.
On the other hand, his Honour recognised a countervailing policy, namely that parties should not be discouraged from making admissions out of fear that, once give, the admissions cannot be withdrawn.
30 Later cases have given weight to the observations made by Rogers CJ in Coopers Brewery v Panfida. In Ridolfi v Rigato Farms Pty Ltd [2000] 2 Qd R 455, for example, the Queensland Court of Appeal upheld the refusal of the trial judge to allow the defendant in a personal injuries case to withdraw admissions deemed to have been made by reason of a failure to dispute a notice to admit facts. de Jersey CJ, with whom McPherson JA and Williams J agreed, observed (at 459) that:
“There is no principle that admissions made, or deemed to have been made, may always be withdrawn `for the asking', subject to payment of costs. The discretion is broad and unfettered, as exemplified by [Coopers Brewery v Panfida]”.
Williams J noted that counsel had referred to the passage of Bowen LJ in Cropper v Smith. His Honour said (at 460):
“That statement, while made over 100 years ago, is still relevant, and it encapsulates a principle which a judge must always take into consideration in determining whether or not it is appropriate, for example, to allow a party to withdraw an admission. Essentially it is no more than a recognition that courts will, so far as possible, ensure that a party has a fair trial. But, for example, where the detriment or prejudiced is self-induced, the party may not be entitled to relief”.
Williams J went on to endorse the comment of Rogers CJ that the approach of Lord Denning in Clark v Wilkinson was the product of another age.
31 In Drabsch v Switzerland General Insurance Co Ltd, unreported, 16 October 1996, Supreme Court of New South Wales, Santow J in the context of an appeal from orders made on an application for leave to withdraw admissions in pleadings, summarised the relevant principles as follows:
"1. Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted ... .
2. The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guidelines being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded ... .
3. Where a court is satisfied that admissions have been made after consideration and advice such as from the parties' expert and after full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn ... .
4. It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission ... .
5. Following Cohen v McWilliam & Anor [1995] 38 NSWLR 476, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party”.
32 Some care must be taken in applying the principle stated in Coopers Brewery v Panfida. Rogers CJ clearly gave great weight to efficient case management and the importance of avoiding disruption to court lists. His Honour may also have been influenced by the fact that the admission was made in response to a consent order in the proceedings. Since Coopers Brewery v Panfida was decided, the High Court, in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, has reaffirmed the principle stated by Bowen LJ in Cropper v Smith as applied in Clough and Rogers v Frog. In that case, the majority (Dawson, Gaudron and McHugh JJ) observed (at 154) that
“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”
Later, their Honours said (at 155):
“Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.”
33 In Hanave Pty Ltd v LFOT Pty Ltd [1997] FCA 218, Moore J took account of the observations in Queensland v J L Holdings in granting leave to an applicant " at the concluding stages of...protracted litigation" to withdraw a concession made on its behalf by counsel. The concession concerned the scope of a representation pleaded in the statement of claim. His Honour granted leave for the applicant to adopt a broader construction of the pleadings, notwithstanding that an adjournment was apparently required in order to allow the respondents to adduce further evidence required by the expansion of the issues in the case.
34 It seems to me that, having regard to the reasoning in Queensland v J L Holdings, questions of case management (in the sense of efficient court administration and use of court time), although not irrelevant, should not play a decisive or paramount role in determining whether or not to grant leave to a party to withdraw an admission. I do not, however, read the High Court's decision as entitling a party to raise a fresh issue in litigation at any time of its choosing, regardless of the basis on which the litigation has been conducted or the stage the proceedings have reached. It must be remembered that in Queensland v J L Holdings, the application to amend the pleadings was made six months prior to the scheduled date of the trial and, according to the majority, the amendment raised no complex factual issues. The High Court was not concerned with an application in the course of a hearing to withdraw an admission made on a factual question within the knowledge of the party making the admission.
35 Consistent with what was said by Santow J in Drabsch v Switzerland Insurance, a party who makes a clear and distinct admission on a factual question, which is accepted and acted upon by the opponent, should not be permitted freely to withdraw that admission. Whether or not it is appropriate to grant leave will depend upon the particular circumstances of the case and an assessment of the interests of justice. The relevant circumstances include the nature of the admission, how it came to be made (for example, whether it was made deliberately or inadvertently), when and why the party seeks to withdraw the admission and the impact of any withdrawal on the other parties to the litigation.[58]
[58] Deangrove at [29]-[35] per Sackville J.
In refusing leave to withdraw the admission the Federal Court in Deangrove had regard to the following considerations:
a)that a grant of leave would open up fresh issues which would need to be determined at hearing;[59]
b)that an adjournment of the hearing (which had already run for three days) would be necessary;[60]
c)that it was not the first time that the proceedings had had to be adjourned or vacated, and that the “lamentable history of the litigation” was “virtually wholly attributable” to the party seeking to withdraw the admission;[61]
d)that another delay would work unfairness to the respondent bank, notwithstanding that it was well resourced and because of the prospect of further and possibly irrecoverable costs;[62]
e)the history of the litigation, and having regard to that history, that there “must come a point at which the interests of justice demand that a party to litigation take responsibility for his own conduct”;[63] and
f)that no satisfactory explanation of the making of the admission had been made, especially in circumstances where the director had sworn on three separate occasions that he had signed as guarantor.[64]
[59] Deangrove at [40]-[41] per Sackville J.
[60] Deangrove at [42] per Sackville J.
[61] Deangrove at [43] per Sackville J.
[62] Deangrove at [44] per Sackville J.
[63] Deangrove at [44] per Sackville J.
[64] Deangrove at [45] per Sackville J.
Consistent with there being no formal, or indeed informal, application for the withdrawal of the admission in the Defence that Mr Motherwell was an employee, there was no evidence led or sought to be led, and no affidavit filed, to support any such application for withdrawal, if it had been made. Following determination of its no case to answer application in a case, D’Adamo Nominees elected not to lead any evidence. The liability hearing was thus run on the basis that there was an admission by D’Adamo Nominees that Mr Motherwell was its employee, and without there being any evidence from D’Adamo Nominees, at all, or contrary to the admission. Further, in the circumstances of this case, for reasons set out further below, Mr Motherwell was, in any event, an employee of D’Adamo Nominees.
The Court observes that there is no evidence which would indicate why what is now said to be an erroneous admission was made following a consideration of the relevant factual and legal material available to D’Adamo Nominees’ lawyer as at 13 July 2010. It is relevant to observe that the evidence in the case for the FWO was filed after the Defence was filed, but is entirely consistent with the case advanced in the Statement of Claim, and consistent with the admission made in the Defence, as to Mr Motherwell being an employee of D’Adamo Nominees. D’Adamo Nominees has been represented by lawyers throughout these proceedings, and the Defence is accompanied by a Form 15B Certificate, pursuant to O.11 r.18 of the then FC Rules 1976, indicating that the lawyer representing D’Adamo Nominees had, on the factual and legal material available to him at the time the Defence was filed, a proper basis for each allegation in the pleading. There is no evidence, nor indeed any assertion, of any error or mistake in the pleading as filed. Given the manner in which D’Adamo Nominees has fought these proceedings the Court doubts, and there is no assertion that, the admission was inadvertent or made without due consideration.
If the Court were to have regard to the assertion that there is no, or no sufficient evidence, of Mr Motherwell being an employee of D’Adamo Nominees there would be significant effects in terms of prejudice to the FWO and in relation to case management. The prejudice to the FWO arises from the fact that the case has run to closing submissions on liability on the basis that there was an admission by D’Adamo Nominees which was not withdrawn, or sought to be withdrawn, and if the Court were now to entertain a submission that that admission was not correct, fairness would inevitably require an opportunity for the FWO to respond because the FWO has never had to lead evidence concerning whether or not Mr Motherwell was an employee because that fact was admitted.
Following the Court’s decision in D’Adamo Nominees (No. 2) it might have been expected that this would no longer be an issue in these proceedings. But, the matter was raised by D’Adamo Nominees in closing submissions on liability. In terms of case management a withdrawal of the admission would be most inconvenient given that both parties have run their cases, and especially so in circumstances where the FWO’s case has been run on the basis of an admission on this issue, and D’Adamo Nominees’ case has been run on the basis of an election not to lead evidence following the outcome of the no case to answer submission. It also needs to be borne in mind that there have been three days of hearing prior to the no case to answer judgment in D’Adamo Nominees(No. 2), an earlier hearing in relation to objections to subpoenas, and a fourth day of hearing proper for the hearing of submissions in relation to liability. In those circumstances, general principles of case management, militate against any application to withdraw an admission at the final stage of the liability proceedings.
The admission which is sought to be withdrawn here, after the case has closed, is an admission made on a factual question within the knowledge of the party making the admission. That weighs heavily against the admission being allowed to be withdrawn at this stage of the proceedings.
In the above circumstances, and having regard to the interests of justice, case management factors, the nature of the admission and the lateness of the attempted withdrawal of the admission, and the fundamental impact of the admission in terms of a central underlying issue, that is whether Mr Motherwell is employed, and therefore whether the ECI Award NAPSA applies, the Court is not persuaded that leave ought to be granted to withdraw the admission made by D’Adamo Nominees in paragraph 8 of the Defence that Mr Motherwell was an employee of D’Adamo Nominees at the relevant times.
D’Adamo Nominees criticises the judgment in D’Adamo Nominees (No. 2) in this regard and suggests that the evidence relied upon does not establish that Mr Motherwell was employed in the role of electrical assistance or that the major and substantial basis on which he understood his duties was for the purposes of being an electrical assistant under the ECI Award NAPSA, and that the Court needs to examine the evidence in its totality.[263] The criticism is misconceived because the Court was in those circumstances dealing with a lower threshold test considering whether or not there was sufficient evidence to establish a case to answer.
[263] D’Adamo Nominees (No. 2) at [46]-[47] per Lucev FM.
D’Adamo Nominees submitted that Mr Houlihan, assuming that the Court found that he was an employee, was only one person and there is no, or alternatively, no sufficient evidence as to how Mr Motherwell assisted him, either directly or indirectly, or how often he did so such as to meet the test that any assistance provided comprised a major and substantial part of Mr Motherwell’s employment. Further, D’Adamo Nominees says that there was little or no evidence of Mr Motherwell directly assisting anyone, and no evidence that Mr Motherwell’s major and substantial duties demonstrated that he was directly assisting anyone.
The statement of claim pleads that:
From 20 August 2007 to 3 February 2008 the Employee [Mr Motherwell] was employed by the Respondent [D’Adamo Nominees] in the role of electrical assistant.
Particulars
Under Clause 5 of the NAPS, “Electrical Assistant” means an employee directly assisting any other employee covered by the award.
The Employee’s duties included accompanying a qualified electrician on site and providing assistance as required, carrying out some basic wiring under supervision, collecting and delivering wiring and other supplies, and basic sweeping and tidying tasks.
Clause 5(10) of the ECI Award NAPSA defines “Electrical Assistant” as follows:
“Electrical Assistant” shall mean an employee directly assisting any other employee covered by this award.
D’Adamo Nominees also submitted that there was doubt that Mr Motherwell, Mr Zampogna and Mr Houlihan were employed by D’Adamo Nominees trading as L & A Electrics. For reasons set out above:
a)Mr Motherwell was an employee; and
b)Mr Houlihan was an employee.
In relation to Mr Zampogna:
a)D’Adamo Nominees submitted that there was insufficient evidence to conclude to the relevant standard of proof that Mr Zampogna was an employee of D’Adamo Nominees. It was said that none of the witnesses knew whether or not Mr Zampogna was an employee, and in particular:
i)Ms Rosendorff did not appear to know;[264] and
ii)Mr Chapple said he did not believe a definitive view had been formed;[265] and
b)D’Adamo Nominees suggests that the evidence includes indicia pointing to Mr Zampogna being an independent contractor. That evidence includes the absence of timesheets completed by Mr Zampogna, a sub-contractor agreement, and the trading name of Jojoy Pty Ltd on invoices prepared by Mr Zampogna for periods during which Mr Motherwell was employed.[266]
[264] Transcript, 17 November 2010, page 73.
[265] Transcript, 17 November 2010, page 38.
[266] Exhibit 5, annexure A, folios 85 to 100.
The payroll records, nominally payslips, for Mr Zampogna indicate that he was paid a flat rate each week of $2500, with PAYG withholding tax deducted, holiday leave accrual, and payment of the superannuation guarantee charge contributions. The payslips give no indication of the payment of any allowances, overtime, or provision for sick pay, unlike the payslips for Mr Motherwell and Mr Houlihan whom the Court has found to be employees of D’Adamo Nominees. Those payslips cover the pay periods from 11 August 2007 to 25 January 2008, which is most of the period during which it is alleged that Mr Motherwell was an electrical assistant. There are also tax invoices addressed to L & A Electrical from Jojoy Pty Ltd,[267] citing an ABN number (on many of the invoices) and recording the hours worked, from 13 August 2007 to 8 December 2007 upon which Mr Zampogna has been paid. There was evidence that Mr Zampogna was a director of Jojoy.[268] There is also in evidence a sub-contractor agreement between D’Adamo Nominees and the “Sub-contractor”, seemingly signed by Mr Zampogna, agreeing to work for commission for the first two years and thereafter at a minimum fee of $130 an hour. The start date of that agreement is 28 October 2005. That agreement described itself as a “Contract for Services” and provides that the “Sub-contractor will provide L & A Electrics with tax invoices for hours and/or work completed.” There was also evidence of Mr Zampogna’s use of equipment and supplies provided by L & A Electrics, including a vehicle, fuel for the vehicle, and some work clothing.
[267] “Jojoy”.
[268] Transcript, 17 November 2010, page 162.
There was also evidence given by Mr Motherwell that on at least one occasion he attended a non-L & A Electrics job with Mr Zampogna.
Having regard to the factors for consideration as to whether a person is an employee as set out in Brodribb Sawmilling, Vabu and Climaze and the other cases referred to previously in this Reasons for Judgment, the:
a)sub-contractor agreement between L & A Electrics and Mr Zampogna;
b)tax invoices directed to L & A Electrics from Jojoy, with an ABN number cited;
c)payroll records which indicate a flat weekly rate of payment to Mr Zampogna, and which do not indicate any of the usual allowances payable to an electrician under the ECI Award NAPSA, and do not make provision for sick leave as do the payslips for Mr Motherwell and Mr Houlihan;
d)the evidence of other work being performed by Mr Zampogna, other than for L & A Electrics,
is sufficient to persuade the Court that Mr Zampogna was not an employee of D’Adamo Nominees trading as L & A Electrics, or alternatively, that there was not sufficient evidence to satisfy the Court, on the balance of probabilities, that that was the case.
Because Mr Zampogna was not an employee of D’Adamo Nominees he could not, therefore, have been a person covered by the ECI Award NAPSA, and was therefore not a person covered by the award whom Mr Motherwell could have directly assisted.
There is no evidence that Mr Zampogna was an employee of Jojoy Pty Ltd. There is therefore no evidence that he was employed by Jojoy Pty Ltd. Thus, even if Jojoy Pty Ltd was an electrical contractor (about which there is also no evidence), and bound by the ECI Award or the ECI Award NAPSA (a question which was not explored in evidence in relation to Jojoy Pty Ltd), it has not, therefore, been established that Mr Zampogna was an employee of Jojoy Pty Ltd covered by the ECI Award or the ECI Award NAPSA. In that regard, for the period that Mr Motherwell was working with Mr Zampogna it has not been established that Mr Zampogna was a person covered by the ECI Award or ECI Award NAPSA, and Mr Zampogna cannot therefore have been a person whom Mr Motherwell was directly assisting as an employee covered by the ECI Award NAPSA.
From an abundance of caution, the Court notes that there was no evidence as to who “Anthony” was, or if he was in fact an apprentice, or whether in fact he was employed by D’Adamo Nominees, or whether the ECI Award NAPSA applied to him, and, if so, how. “Anthony” was therefore not established to be a person covered by the ECI Award NAPSA whom Mr Motherwell could have directly assisted.
In the circumstances, and on the evidence, it can therefore only be Mr Houlihan who was an employee whom Mr Motherwell could be said to be directly assisting as an employee covered by the ECI Award NAPSA during the time that the FWO claims that Mr Motherwell was an electrical assistant.
In order to conclude that Mr Motherwell was an “electrical assistant” under the ECI Award NAPSA that must be his major and substantial function as an employee. The major and substantial test is applied to establish an employee’s classification under an award or agreement.[269] The test requires an examination of what the major and substantial employment of the employee was. It is not merely a matter of quantifying time spent on various tasks; the quality of the type of different work done is a relevant consideration also.[270] It is an examination of what employees believed their duties to be, and what they could be directed to perform.[271] This test also applied in Construction, Forestry, Mining and Energy Union v CSBP Limited[272] where it was observed that to identify the primary purpose “one does not focus upon one aspect of an employee’s work in isolation from the totality of his or her duties”. The Court then referred to Burt CJ’s comments in The Federated Engine Drivers & Firemen’s Union (WA) v Mt Newman Mining Co Pty Ltd[273] that not every worker who drives an engine in carrying out there employment is an engine driver, the question is whether “the worker is employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else”,[274] merely operating a machine so as to do the thing a person employed to do does not make them an engine driver. In Federated Clerks’ Union of Australia Industrial Union of Workers (WA Branch) v Cary[275] Burt CJ said:
[i]f in substance the worker’s job is to write and the job is done when the writing has been done he is a clerk, but if in substance the writing done by the worker is but a step taken in the doing by him of something extending beyond it then he is not. The ‘substance’ of the work identifies the question as being one of degree and it indicates the answer to it will be, or may be, very much the product of a value judgment.[276]
[269] The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No. 7) [2013] FCCA 1097.
[270] Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18.
[271] Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4 at [172] per Judge Driver.
[272] [2012] FCAFC 48; [2012] FCAFC 48; [2012] FCAFC 48, (2012) 212 IR 206, 64 AILR 101-578 at [44] per Keane CJ, Siopis and Rares JJ; see also Joyce v Christofferson (1990) 26 FCR 261; 33 IR 390, 32 AILR 401; FCR at 279 per Gray J.
[273] (1977) 57 WAIG 794 (“Mt Newman Mining”).
[274] Mt Newman Mining at 794 per Burt CJ.
[275] (1977) 57 WAIG 585 (“Cary”).
[276] Cary at 586 per Bur CJ.
Integral to the question of major and substantial function in this matter is what is meant by “directly assisting” in the definition of “electrical assistant”. Notwithstanding the observations of one member of the High Court in Toowoomba Foundry Pty Ltd v The Commonwealth[277] that a classification of “employee directly assisting an employee whose margin above the basic wage is 14s or more” was a “vague classification”,[278] the ordinary meaning of the phrase “directly assisting” can be gleaned from the dictionary meaning of the words comprising that phrase. Relevantly, the words “directly” means:
without the intervention of a medium, immediately, by a direct process or mode.[279]
In essence that means someone immediately assisting another. To “assist” means:
to aid, help.[280]
It follows that “assisting” must mean giving aid or giving help. In the circumstances, the phrase “directly assisting” means immediately aiding or helping.
[277] (1945) 71 CLR 545 (“Toowoomba Foundry”).
[278] Toowoomba Foundry at 585 per Williams J.
[279] The Shorter Oxford Dictionary on Historical Principles (3rd Ed) (Volume 1) (Oxford: Clarendon Press, 1973), page 556 (“Shorter Oxford Dictionary”).
[280] Shorter Oxford Dictionary, page 119.
The question which remains, therefore, is whether for the period it is claimed that Mr Motherwell was an “electrical assistant” is there evidence that he was immediately helping or aiding Mr Houlihan during that period as a major and substantial part of his duties?
The ECI Award NAPSA requires that a person employed as an “electrical assistant” be an employee who was “directly assisting any other employee”. The Court observes that there is no requirement under the ECI Award NAPSA for an electrical assistant to be assisting a qualified person as was perhaps suggested by some of the submissions for D’Adamo Nominees. It is sufficient if an electrical assistant, as defined in the ECI Award NAPSA, is “directly assisting any other employee”.
Mr Motherwell’s Affidavit evidence in relation to the question of the work that he performed during the period it was claimed that he was an electrical assistant was as follows:
11.On or about Friday 31 August 2007, D’Adamo gave me a piece of paper with an address and the name, Joe Zampogna (Zampogna) and said that I would be working with Zampogna from Monday at the address. I do not remember the exact address.
12.For about the next nine months, I basically worked every day with Zampogna and two apprentices: Joshua Houlihan (Josh), who was a 4th year apprentice, and Anthony, who was a 2nd year apprentice. I do not know Anthony’s surname.
…
14.While I was working with Zampogna, I would normally meet Zampogna and the other apprentices at Zampogna’s house at approximately 7am. Zampogna would then drive us all to the work site for the day in an L&A Electrics van. The work site was always a partly built residential house. It was our job to do the wiring of the house. We would do the initial wiring of the houses, then the plasterers (from another company) would do the plastering and we would come back to the house a few weeks later to do the light fittings.
…
16.For about the first 3 months, Zampogna would specifically direct me what to do. After that time, I had learned what my tasks involved, and generally worked without Zampogna telling me exactly what to do. Josh and Anthony also told me what to do. For at least the first 5 months, I was doing fairly basic work because Zampogna also had the two other electrical apprentices (Josh and Anthony) working for him
17.While working with Zampogna, my duties involved loading up the van with supplies, taking the electrical cabling from the van on to the site, taking tools and ladders from the van on to the site, chiselling out light switch fittings, drilling into brick walls, feeding cabling through cavity walls, finishing power points, cleaning the van and generally cleaning up after Zampogna, Josh and Anthony.
(Emphasis added)
The above evidence is equivocal in relation to whether or not Mr Motherwell worked directly with Mr Houlihan, and to the extent that he might have worked directly with Mr Houlihan, when that was and for what period or periods. The thrust of the affidavit evidence is that he was primarily “working with Mr Zampogna”. There is evidence that he worked with Mr Houlihan, but whether he was directly assisting Mr Houlihan as such is not apparent.
Mr Motherwell was cross-examined about the period during which it was claimed he was an electrical assistant. Of it he says that:
a)he “was assigned to work with” Mr Zampogna;[281]
[281] Transcript, 16 November 2010, page 24.
b)he could not remember who he worked with on 15 October 2007 but it would have been with “either” Mr Zampogna, Mr Houlihan or Anthony;[282]
[282] Transcript, 16 November 2010, page 24.
c)Mr Zampogna, Mr Houlihan and Anthony were the only three people that he worked with through that time;[283]
d)he does not recall where he went on Friday, 14 December 2007, or what duties he did, or with whom he worked on that day;[284]
e)he cannot remember what duties he did on any given date, or with whom he worked with on any given date, and did not keep any records that would allow him to remember;[285]
f)he worked with Mr Zampogna until “April or May 2008”;[286]
g)about a month after he finished work with Mr Zampogna he was told he would be working with Mr Wilson, who was a contractor, and he thinks that this was in “June or July 2008”;[287]
h)he was working in the workshop on 30 April 2008 (the day the apprenticeship agreement was signed);[288]
i)each morning Mr Houlihan, Anthony and he would go to Mr Zampogna’s house “jump in the Holden Rodeo, which is the work car, and go to work. By the end of each day, park up in … [Mr Zampogna’s] driveway, and we’d unload it or load it up, and then take our own cars home”;[289]
j)there were a couple of occasions on which Mr Zampogna brought his own white van to work, but “the majority of the time it was always in the Rodeo”;[290]
k)they would sometimes drop Mr Houlihan and Anthony “off at a job because they were capable of doing a job on their own” and then he and Mr Zampogna would go on to another job;[291] and
l)there was about a month when he was in the factory between working with Mr Zampogna and working with Mr Wilson.[292]
[283] Transcript, 16 November 2010, page 24.
[284] Transcript, 16 November 2010, page 26.
[285] Transcript, 16 November 2010, pages 26-27.
[286] Transcript, 16 November 2010, page 38.
[287] Transcript, 16 November 2010, page 39.
[288] Transcript, 16 November 2010, page 39.
[289] Transcript, 16 November 2010, page 47.
[290] Transcript, 16 November 2010, page 49.
[291] Transcript, 16 November 2010, page 64.
[292] Transcript, 16 November 2010, page 67.
An analysis of the timesheets in evidence for Mr Motherwell[293] and Mr Houlihan[294] indicates that:
a)Mr Houlihan and Mr Motherwell did not work together in the period from 3 to 23 September 2007;
b)there is no evidence, due to there being no timesheets for Mr Motherwell, which indicates that Mr Motherwell and Mr Houlihan worked together for the period from 19 November 2007 to 2 December 2007, and Mr Houlihan was sick on 3 December 2007; and
c)Mr Motherwell and Mr Houlihan did not work together at any time after 23 January 2008.
[293] Ms Rosendorff’s September 2010 Affidavit, Annexure H.
[294] Mr Chapples’s November 2010 Affidavit, Annexure A.
For the periods outside of the abovementioned periods during the period from 24 September 2007 to 23 January 2008 (and excluding the Christmas holiday break) it appears that Mr Motherwell and Mr Houlihan did work on the same sites.
Having regard to:
a)Mr Motherwell’s equivocal affidavit evidence;
b)Mr Motherwell’s oral evidence in which he was unable to give any direct evidence that he worked with Mr Houlihan at any particular time, although it is apparent that he worked with Mr Houlihan from time to time, but the nature of the work performed and the frequency of it is not discernible from his oral evidence;
c)the significant periods of time during which Mr Motherwell did not work with Mr Houlihan at all during the period that it is claimed that Mr Motherwell was an electrical assistant; and
d)the failure to call either Mr Zampogna or, and particularly, Mr Houlihan (who was an employee covered by the ECI Award NAPSA) to give evidence about the nature of the work performed by Mr Motherwell, and whether Mr Motherwell might have directly assisted anyone, it may be inferred that their evidence would not have assisted the FWO,
the Court is not satisfied, on balance, that the evidence establishes that Mr Motherwell was an employee directly assisting any other employee covered by the ECI Award NAPSA. On balance, the evidence overall suggests that he may have been directly working with and assisting Mr Zampogna, but even there the evidence is somewhat equivocal. The evidence does not establish that Mr Motherwell was directly assisting Mr Houlihan, who is the only person whom the evidence establishes was an employee directly covered by the ECI Award NAPSA who worked on the same sites as Mr Motherwell during the period that it is claimed that Mr Motherwell was an electrical assistant. Further, the evidence does not establish, in any event, that Mr Motherwell worked with Mr Houlihan for the whole of that period.
The FWO has therefore failed to establish its claim that Mr Motherwell was employed as an electrical assistant by D’Adamo Nominees during the period from 3 September 2007 to 3 February 2008.
Insofar as the issue of whether or not Mr Motherwell was an electrical assistant on and from 4 February 2008 was raised during the course of the proceedings, it not having been pleaded by the FWO at any stage, the evidence generally is equivocal and does not establish that Mr Motherwell worked as an electrical assistant after 4 February 2008. Mr Motherwell continued to work with Mr Zampogna for some time, seemingly on the evidence ceasing prior to 30 April 2008 when Mr Motherwell was working in the workshop, but there is no sufficient evidence to indicate that in the period 4 February 2008 to prior to 30 April 2008 that Mr Motherwell was directly assisting any other employee covered by the ECI Award NAPSA. For the period that Mr Motherwell was in the “factory” there is no evidence that he directly assisted any other employee covered by the ECI Award NAPSA. In any event, in relation to direct assistance of any employee under the ECI Award NAPSA there is simply insufficient evidence to reach any definite conclusion on the balance of probabilities. From the time that Mr Motherwell ceased working in the factory and commenced working with Mr Wilson there is also no evidence that he was directly assisting any other employee covered by the ECI Award NAPSA. Mr Wilson was not such a person, he being a contractor, and not an employee, and therefore not covered by the ECI Award NAPSA.
In all of the above circumstances, the FWO has failed to establish that Mr Motherwell was employed as an electrical assistant at any time during his employment at D’Adamo Nominees.
Conclusions and orders
The Court has concluded that:
a)Mr Motherwell was not employed by D’Adamo Nominees as an electrical assistant under the ECI Award NAPSA for the period from 3 September 2007 to 3 February 2008, or at all during his employment at D’Adamo Nominees;
b)Mr Motherwell was not registered as an apprentice under the provisions of s.31 of the IT Act because the apprenticeship agreement purported to be entered into was not duly executed for the purposes of s.30(1)(c) of the IT Act, and was therefore void ab initio;
c)Mr Motherwell was therefore not an apprentice employed by D’Adamo Nominees for the period from 4 February 2008 to 30 January 2009; and
d)it follows from (a), (b) and (c) above that the ECI Award NAPSA did not apply to Mr Motherwell during his employment at D’Adamo Nominees, and it is therefore unnecessary to further consider the specific wage and entitlement claims made by the FWO based on the ECI Award NAPSA.
In the above circumstances, it follows that the application must be dismissed, and there will be an order accordingly.
I certify that the preceding two hundred and seventy (270) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Deputy Associate:
Date: 8 May 2015
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