Fair Work Ombudsman v Yes Insurance Group Pty Ltd
[2021] FedCFamC2G 365
•16 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Yes Insurance Group Pty Ltd [2021] FedCFamC2G 365
File number(s): MLG 475 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 16 December 2021 Catchwords: INDUSTRIAL LAW – coverage of the Banking, Finance and Insurance Award 2020 (‘Award’) - whether employer covered by Award - whether employer engaged in the industry of ‘insurance’ - meaning of ‘insurance’ - meaning of the phrase ‘all forms of insurance’- meaning of the phrase ‘such as’ - whether the provision of roadside assistance services is ‘insurance’ - held that the roadside assistance product offered by employer fell within the definition of ‘insurance’ and the phrase ‘all forms of insurance’ for the purposes of the Award - held further that the provision of roadside services in the context of the matter was service to the industry of insurance - employer covered by the Award - employee performing work within the classifications in the Award - Award covers and applies to the employer and the employee.
INDUSTRIAL LAW - contravention of 716(5) of the Fair Work Act 2009 (‘Act’) - employer and employee covered by Award – contraventions otherwise admitted - matter set down for penalty hearing.
Legislation: Banking, Finance and Insurance Award 2020 cl. 4.1, 4.2, 4.3, 4.4, 4.7
Fair Work Act 2009 (Cth) ss 3(b), 550(2), 716(5), 717
Insurance Act 1973 s 3
Cases cited: Prudential Insurance Co v Inland Revenue Cmrs [1904] 2 KB 658 Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 3 December 2021 Counsel for the Applicant: Mr Trindade Solicitor for the Applicant: Clayton Utz Counsel for the Respondents: Mr Manos Solicitor for the Respondents: Joseph Burke Law Pty Ltd ORDERS
MLG 475 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: YES INSURANCE GROUP PTY LTD
First Respondent
EMMA RITA KIMONIDES
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
16 DECEMBER 2021
THE COURT DECLARES THAT:
1.The First Respondent is covered by the Banking, Finance and Insurance Award 2020 (‘Award’) in respect of the employment by it of Taaef Hazari and the Award applies to First Respondent in respect of its employment of Mr Hazari.
2.The First Respondent contravened section 716(5) of the Fair Work Act 2009 (‘Act’) by failing to comply with the Compliance Notice dated 9 October 2020.
3.The Second Respondent was involved, within the meaning of section 550(2) of the Act, in the contravention by the First Respondent of section 716(5) of the Act identified in paragraph 2 above.
AND THE COURT ORDERS THAT
1.The Application in a Proceeding filed 14 September 2021 be dismissed.
2.The matter remains set down for a half day penalty hearing on 1 April 2022 at 10:30am.
3.The Applicant must file and serve any evidence in respect of penalty and an outline of submissions on penalty by 31 January 2022.
4.The Respondents must file and serve any evidence in respect of penalty and an outline of submissions on penalty by 28 February 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
The principal issue before the Court is whether the First Respondent, Yes Insurance Group Pty Ltd (or more particularly, Yes Assist, a division of Yes Insurance Group Pty Ltd), is covered by the Banking, Finance and Insurance Award 2020 (‘Award’).
In my view, for the reasons that follow, Yes Insurance Group Pty Ltd (including Yes Assist) is covered by the Award.
BACKGROUND
The present controversy comes before the Court in the following way.
On 12 March 2021, the Fair Work Ombudsman (‘Applicant’) commenced proceedings against Yes Insurance Group Pty Ltd (‘First Respondent’) and Emma Kimonides, a director of the First Respondent (‘Second Respondent’) (collectively ‘Respondents’). The Applicant sought a declaration that the First Respondent contravened section 716(5) of the Fair Work Act 2009 (‘Act’) by failing to comply with a Compliance Notice. A declaration was also sought that the Second Respondent was involved in the contravention by the First Respondent of section 716(5) of the Act. Orders were sought, among other things, that the Respondents take steps to comply with the Compliance Notice and that pecuniary penalties be imposed upon each of the Respondents.
On 6 May 2021, the Court made orders by consent. Those orders provided for the parties to file a Statement of Agreed Facts (‘Statement’) with the Court and for the matter to be set down for penalty hearing. The Statement was filed with the Court on 27 May 2021.
On 14 September 2021, the Respondents having changed legal representative, filed an Application in a Proceeding (‘Review Application’). In the Review Application, the Respondents sought a review of the Compliance Notice under section 717 of the Act. They also sought, inter alia, that the penalty hearing be vacated and a declaration that the Award did not apply to the First Respondent or the former employee that had complained to the Applicant, Mr Taaef Hazari.
On 29 September 2021, the Court made orders vacating the penalty hearing. Instead, the Court made an order setting down the Review Application for hearing. As a consequence of discussions between the parties, the Court also agreed to determine (at the time it heard the Review Application) five separate questions agreed by the parties.
THE ISSUES BEFORE THE COURT
The five questions before the Court are as follows:
(a)Is the Review Application an abuse of process?
(b)Has the Review Application been brought out of time?
(c)Did the Award apply to the First Respondent and Mr Hazari?
(d)Did the Respondents contravene the Compliance Notice?
(e)Should the Court confirm, cancel or vary the Compliance Notice?
In submissions before me, the parties agreed that if the Court found that the First Respondent was covered by the Award in respect of the employment of Mr Hazari, it was unnecessary for the Court to determine the other questions. The Respondents through their counsel further accepted that if the Court found that the Award covered the First Respondent in respect of its employment of Mr Hazari, it should proceed to make the declarations contemplated by the parties when they signed the Statement, and set the matter down for a hearing on penalty.
Given the matters above, it is appropriate to first consider whether the Award covers and applies to the First Respondent in respect of its employment of Mr Hazari.
DOES THE AWARD COVER THE FIRST RESPONDENT?
Determining the question above requires the Court to properly interpret the Award and then apply that interpretation to the facts before it.
Principles of interpreting awards
The legal principles when interpreting an award are well-settled. Those principles were conveniently summarised by the Respondents in their written submissions as follows (noting that no issue was taken by the Applicant with the summary):
8.The legal principles when interpreting an award are well settled. The following principles are to be observed:
(a)industrial instruments are not to be interpreted narrowly or pedantically. If the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning;
(b)the aim is to determine what meaning is intended by the framers keeping that they 'were likely of a practical bent of mind';
(c)it is necessary to have regard to the practical purpose of the instrument intended to be served by the parties and the context in which it was made;
(d)generally, ordinary or well-understood words should be given their ordinary or usual meaning;
(e)the strict literal interpretation is to be avoided and clauses must be viewed broadly and in context;
(f)the agreement must be construed in relation to the matrix of facts that existed at the time the agreement was made;
(g)where a clause in an instrument is the 'product of a history', regard can be had to that history;
(h)the court or tribunal should strive to give effect to the intention of the authority which made the award or, in the case of an agreement the intent of the parties to the agreement, provided that the words appearing in the instrument can reasonably be interpreted to mean that which the parties intended them to mean;
(i)the court or tribunal's recourse to extrinsic material in the interpretation of industrial instruments is not dependent upon the existence of ambiguity in the industrial instrument.
9.In Workpac v Skene the law on agreement interpretation (which applies equally to award interpretation) was summarised as follows:
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes ) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor ) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16](Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
There are two further related matters. First, both parties accepted that more than one award may cover a particular employer. Second, it was accepted that an employer may have part of its operations covered by an award, while another part of its operations may remain free of award coverage.
The coverage provision in the Award
Clause 4 of the Award is concerned with coverage. Clauses 4.1 and 4.2 of the Award are critical to the present controversy. They are set out below:
4.1This industry award covers employers throughout Australia who are engaged in the banking, finance and insurance industry in respect of work by their employees in a classification in this award and those employees to the exclusion of any other modern award.
4.2Banking, finance and insurance industry means the industries of banking, lending, loaning, providing credit, investment, finance, superannuation, all forms of insurance, credit unions, building societies, financial intermediaries, trustee creditors and agencies, money market dealers, credit or charge card institutions, wool broking, agribusiness and services to the above industries such as broking, trading, debt recovery, financial consulting, valuation, money changing, data processing, transaction accounts, telephone enquiries and transaction processing.
It may be seen from the above that in order for an employer and employee to be covered by the Award, the following conditions must, relevantly, be satisfied. First, the employer must be ‘engaged in the banking, finance and insurance industry’ in ‘respect of work by their employees in a classification’. Second, an employee must fall within the classification in the Award. Unless these conditions are satisfied, neither employer nor employee will be covered by the Award and the Award will not apply to them.
Much of the argument before me turned on whether the First Respondent was engaged in the ‘banking, finance and insurance industry’ in respect of its Yes Assist division. As can be seen, ‘banking, finance and insurance industry’ is a defined term in the Award. There are at least two observations to be made about that definition. First, it is apparent that the ‘banking, finance and insurance industry’ is in truth not a singular industry. In reality, it comprises a diverse range of industries as set out in clause 4.2 of the Award. In that sense, the Award applies to multiple industries that fall within the definition set out in clause 4.2. Second, the Award not only applies to the named industries but to ‘services to the above industries’. What then follows is a list of further industries or services which are said to service the principal industries that fall within the definition of ‘banking, finance and insurance’. In this way, the number of industries or services covered by the Award is extended.
Within clause 4.2, the words ‘and services to the above industries’ is followed immediately by the words ‘such as’. The word ‘such’ is frequently troublesome. The trouble arises because the phrase is open to ambiguity. It can work to restrict the scope of the noun to which it applies, or it can work in a non-restrictive manner to constitute or give examples of a class of things. The difficulty is well illustrated by reference to the Macquarie Dictionary which relevantly defines the phrase as follows:
13. such as,
a. of the kind specified: people such as these are not to be trusted.
b. for example: she likes outdoor sports such as tennis and football.
Within clause 4.2 of the Award, I am of the view that the use of the words ‘such as’ was employed by the drafters in a non-restrictive sense and in order to provide examples of services that might be covered. The Award is designed to cover a variety of banking, finance and insurance industries. In that sense, it is designed to cover a diverse range of industries. The drafters did not seek to limit coverage of the Award merely to the principal identified industries. Rather, they sought to expand coverage of the Award to include those industries that ‘service’ the identified industries. The list of services that then follow the words ‘such as’ are diverse in nature ranging from ‘broking’ to ‘telephone enquiries’ and support the proposition that the words ‘such as’ is used in a non-restrictive sense.
A critical issue in the present proceeding is what is meant by the term ‘insurance’ and by the phrase ‘all forms of insurance’ within clause 4.2. Regrettably, the submissions of both parties did not focus on this issue as one might expect (perhaps because it was accepted that the insurance division of First Respondent operated in the ‘banking, finance and insurance industry’). In my view, however, a critical aspect to determining whether the First Respondent in respect of its Yes Assist division is covered by the Award is to properly interpret and understand what is meant by the term ‘insurance’ and the phrase ‘all forms of insurance’.
The term ‘insurance’ is not defined in the Award.
The Macquarie Dictionary defines ‘insurance’ as follows:
Insurance
noun 1. the act, system, or business of insuring property, life, the person, etc., against loss or harm arising in specified contingencies, as fire, accident, death, disablement, or the like, in consideration of a payment proportionate to the risk involved.
2. the contract thus made, set forth in a written or printed agreement (policy).
3. the amount for which anything is insured.
4. the premium paid for insuring a thing.
5. Colloquial an alternative to fall back on if one's main objective is lost: she already has a boyfriend, so this bloke is just insurance.
6. Colloquial protection money.
–adjective 7. relating to a company, agent, etc., dealing with insurance.
–phrase 8. buy insurance, to protect oneself against a possible future setback.
The Encyclopaedic Australian Legal Dictionary defines ‘insurance’ as:
Insurance
The relationship of indemnity which exists between two parties, the 'insurer’ and the 'insured’ (or, in certain contexts, 'assured’), irrespective of whether the relationship arises by statute or by contract: R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577; 27 ALR 263. The insurance relationship most commonly arises by a contract of insurance. A contract of insurance exists where one person (the 'insurer’) undertakes, in return for some agreed consideration (the 'premium’), to pay another person (the 'insured’ or 'assured’) a sum of money, or provide an equivalent benefit, on the happening of a specified event, the occurrence or timing of which is uncertain: Prudential Insurance Co v Inland Revenue Cmrs[1904] 2 KB 658. The insured (or assured) must have an interest in the outcome of the specified event (an 'insurable interest’): Prudential Insurance Co v Inland Revenue Cmrs.
In Prudential Insurance Co v Inland Revenue Cmrs [1904] 2 KB 658, the Kings Bench was required to consider whether a particular contract was a contract of insurance. Channell J in considering the matter states as follows:
Where you insure a ship or a house you cannot insure that the ship shall not be lost or the house burnt, but what you do insure is that a sum of money shall be paid upon the happening of a certain event. That I think is the first requirement in a contract of insurance. It must be a contract whereby for some consideration, usually but not necessarily for periodical payments called premiums, you secure to yourself some benefit, usually but not necessarily the payment of a sum of money, upon the happening of some event. Then the next thing that is necessary is that the event should be one which involves some amount of uncertainty. There must be either uncertainty whether the event will ever happen or not, or if the event is one which must happen at some time there must be uncertainty as to the time at which it will happen. The remaining essential is that which was referred to by the Attorney-General when he said the insurance must be against something. A contract which would otherwise be a mere wager may become an insurance by reason of the assured having an interest in the subject-matter—that is to say, the uncertain event which is necessary to make the contract amount to an insurance must be an event which is prima facie adverse to the interest of the assured. The insurance is to provide for the payment of a sum of money to meet a loss or detriment which will or may be suffered upon the happening of the event. By statute it is necessary that at the time of the making of the contract there should be an insurable interest in the assured. It is true that in the case of life insurance it is not necessary that the interest should continue, and the interest is not the measure of the amount recoverable as in the case of a fire or marine policy. Still, the necessity of there being an insurable interest at the time of the making of the contract shews that it is essential to the idea of a contract of insurance that the event upon which the money is to be paid shall prima facie be an adverse event.
…
A contract of insurance, then, must be a contract for the payment of a sum of money, or for some corresponding benefit such as the rebuilding of a house or the repairing of a ship, to become due on the happening of an event, which event must have some amount of uncertainty about it, and must be of a character more or less adverse to the interest of the person effecting the insurance.
There exists in the Commonwealth Statute books, an Act called the Insurance Act 1973. It defines an ‘insurance business’ as meaning:
‘the business of undertaking liability, by way of insurance (including reinsurance) in respect of any loss or damage, including liability to pay damages or compensation, contingent upon the happening of a specified event, and includes any business incidental to insurance businesses as so defined but does not include:…’.
What then follows in the Insurance Act 1973 is a list of businesses that are not to be regarded for the purposes of the Insurance Act 1973 as insurance businesses, for example, life insurance businesses.
While these definitions vary in terms of their expression, there is not any divergence between them as to what constitutes the core elements of insurance. Those elements are:
(a)the insurer procures payment from the insured (the premium);
(b)in exchange for receiving the premium, the insurer undertakes or accepts or takes on liability that ordinarily falls on the insured;
(c)the liability taken on by the insurer only arises on the occurrence of specified contingencies or events that have been agreed between the parties; and
(d)the acceptance or undertaking by the insurer of the liability referred to above may result in the insurer having to pay damages or compensation to the insured, or cover loss sustained by the insured, or provide some other benefit to the insured.
Clause 4.2 of the Award however, is not just limited to covering employers engaged in ‘insurance’. The Award goes further. It seeks to cover employers in the industry of ‘all forms of insurance’. ‘All’ in the Macquarie Dictionary is defined to refer to the whole quantity of a thing or subject. ‘Forms’ refers to a ‘definite shape; external shape or appearance considered apart from colour or material; configuration’ or ‘a particular structural condition, character, or mode of being exhibited by a thing: water in the form of ice’.
The use of the phrase ‘all forms’ is significant. It is clear, applying the definitions above, that the drafters intended the Award to cover all types or forms of insurance. That is apparent not just from the use of the term ‘all forms’. It is apparent from the manner in which the drafters defined the ‘banking, finance and insurance industry’. The drafters, for example, specified not just the ‘banking’ industry, but also the industries of ‘lending, loaning, providing credit’. Loaning, lending or the providing of credit might reasonably be thought to be part of the ‘banking’ industry, but the drafters nevertheless thought it necessary to specify the coverage of the Award in these and other areas. That approach was not taken when it came to dealing with the term ‘insurance’. No attempt was made by the drafters to limit the Award to particular types of insurance. Instead, the drafters used the deliberately wide phrase ‘all forms’. They did so, in my view, to extend coverage of the Award to widest range of insurances. In this sense, the drafters deliberately took a different approach not only to the manner in which they dealt with the other industries specified in clause 4.2 of the Award, but also to, for example, the approach taken by the Parliament when drafting the Insurance Act 1973. That Act, as noted, specifically excludes certain forms of insurance from the definition contained within it.
It is not surprising that the drafters of the Award sought to expressly cover all forms of insurance. Consider the market for insurance. Members of the public can purchase insurances that include home insurance, contents insurance, car insurance, boat insurance, personal items insurance, health insurance, travel insurance, life insurance, pet insurance, renters insurance, landlord insurance, farm insurance, flood insurance, mortgage insurance, professional indemnity insurance and workers compensation insurance. You can buy insurance when you purchase tickets to an event. There may well be other types of insurance on offer. It seems at times that there is a type of insurance to cover almost every eventuality. The types of insurance on offer in the market seem only to be limited by human imagination and the willingness of an insurer to take on someone else’s risk or liability for a fee in the hope of turning a profit.
The other aspect of the insurance market and the types of insurance on offer is that insurers provide a wide range of benefits to the insured if the insurance arrangement is enlivened. Such benefits are not limited to payment of compensation direct to the insured. For example, car insurance arrangements may provide the insured with access to a car to use while the insured’s car is unavailable. Health insurance provides the insured with access to the various health-related benefits. Travel insurance may provide for emergency accommodation. None of these benefits can be classified as purely pecuniary benefits or payment of compensation.
I have considered the interpretation of clauses 4.1 and 4.2 of the Award set out above. In my view, the interpretation is consistent with the principles of award interpretation referred to earlier. I have endeavoured to give the words their ordinary and usual meaning keeping in mind that the framers of the Award were likely of practical bent of mind. I have endeavoured to eschew a strict literal interpretation, to consider the words in the context, and not to interpret the clauses in a narrow or pedantic fashion.
The business of the First Respondent
The evidence before the Court in relation to the business of the First Respondent is as follows. There are two divisions within the First Respondent, Yes Insurance and Yes Assist. Each division has its own separate registered business name. The First Respondent is the employer of persons performing work within each of the divisions referred to.
It is accepted by the First Respondent that Yes Insurance is engaged in the insurance industry. It arranges business insurance for the commercial transport industry through underwriters. It provides a range of different business insurance products. It assists clients to make claims on the insurance policies when necessary. In order to undertake all of the above work, it holds an Australian Financial Services License.
The First Respondent contends that Yes Assist is not in the insurance industry. Rather, it contends that Yes Assist is in the roadside assistance and recovery service industry. The evidence before the Court in relation to the Yes Assist business was provided by Mr Clint O’Neil, who is employed by the First Respondent as a Manager. In his affidavit, Mr O’Neil deposed that Yes Assist provides roadside assistance and recovery services to the commercial trucking industry. The service works in the following way. A commercial truck operator pays a ‘regular fee’ to Yes Assist. In exchange, the truck operator receives assistance if a truck breaks down. The type of assistance rendered depends on the type of membership held by the truck operator, but may include roadside assistance, truck repair, access to a replacement truck or vehicle and legal assistance. Mr O’Neil deposed that Yes Assist does not provide these services directly to customers, but instead contracts with independent entities who in turn provide these services to the truck operator. These independent entities then charge the truck owner for their services, and Yes Assist receives a commission. Mr O’Neil further deposed that the service Yes Assist provides is similar to the roadside assistance service provided by the RACV.
Mr O’Neil expanded on this evidence while in the witness box. Among other things, his evidence was that:
(a)The product provided by Yes Assist was initially provided to insurance customers of the First Respondent on a complimentary basis. At that time, the First Respondent had a contract with a company to provide roadside services and the idea was to offer the product as an enticement to generate new business (which I understand to be, new insurance business);
(b)By 2020, the roadside assistance product had expanded ‘to include a range of, for example, there was an Australia wide truck smash repair network. There was like for like hire vehicles in regards to a not at fault claim. There was also in regards to a legal panel, so our clients obtaining legal advice through a company called Express Co-legal, and another company called RS Chase Lawyers. These were a full suite of products that were brought to bear within Yes Assist to give the model a holistic approach, not just focussing on roadside assistance’;
(c)By 2020, ‘we were now charging a membership fee to be able to join that product and we were giving our existing clients the opportunity if they wanted to opt into that or if they wanted to opt out of that’.
I have considered the evidence of Mr O’Neil closely. Various matters stand out. Truck operators pay Yes Assist a ‘regular fee’. In exchange for that fee, the truck operator receives assistance if a truck breaks down. It is implicit (if not express) in Mr O’Neil’s evidence that a truck operator can only receive the benefits from Yes Assist if a truck breaks down. The level of assistance provided to the truck operators depends on the amount of the regular fee (or the type of membership) the truck operator has paid or holds.
At this point, it is worth observing that what is described starts to resemble a form of insurance. The ‘regular fee’ or ‘membership’ is the premium. The benefits of Yes Assist are only available in the event of a specified contingency (truck breakdown). The benefits to which a truck operator has access depends on the level of the ‘regular fee’ paid or membership held. That is not unlike many insurance products - health insurance, car insurance and travel insurance to name but a few, all offer different levels of benefits depending on the level of premium the customer is prepared to pay.
The question then arises, having regard to the various elements of ‘insurance’ noted earlier, whether Yes Assist is taking on some liability that ordinarily falls on the truck operator, and whether Yes Assist is providing compensation or some other benefit to truck operator. ‘Liability’ is defined in the Macquarie Dictionary to mean ‘an obligation, especially for payment’. There is little doubt, in my view, that Yes Assist assumes an obligation for various matters when a truck breaks down that the truck operator would otherwise be responsible for if the operator had not purchased the Yes Assist product. For example, Yes Assist becomes responsible for sourcing the service provider to provide the roadside assistance. Yes Assist is responsible for contacting that service provider and sending the provider to the scene of the break down – the truck operator does not have to do this. Yes Assist become responsible for identifying a vehicle hirer if asked and directing the truck operator to that service (seemingly on favourable terms given the evidence of Mr O’Neil about like for like replacement in certain circumstances). Once again, the truck operator does not have to do this. Yes Assist also becomes responsible for directing the truck operator to legal services if needed.
As to what benefits Yes Assist provides to a truck operator, there are at least two elements to consider. First, there are the obvious benefits that flow from what I have described in the immediately preceding paragraph. The truck operators do not themselves need to undertake all of the work described above. Yes Assist does that work for a fee. That there is a benefit to the truck operator is commercially obvious and may be inferred – the operator would not pay for the Yes Assist product if there was no benefit. Second, it is implicit in Mr O’Neil’s evidence that a truck operator receives commercial benefit or some form of discount from being a member of Yes Assist and utilising its recommended service providers. So much may be seen from his evidence that Yes Assist has or arranges ‘like for like hire vehicles in regards to a not at fault claim’.
One of the matters raised by First Respondent is that Yes Assist is not covered by the Award because it does not actually provide the roadside assistance services, but contracts with other independent entities to provide that service. I have considered that evidence. There are two aspects to note about it. First, the statement by Mr O’Neil amounts to little more than sworn assertion. He has not produced to the Court any evidence as to the contractual arrangements between truck operators and Yes Assist, and between Yes Assist and the service providers. Second, this issue also needs to be considered alongside other evidence given by Mr O’Neil that Yes Assist provides a similar roadside assistance service to the RACV. I am personally familiar with the RACV roadside assistance product, having purchased it for approximately 30 years.
In respect of RACV, a customer of RACV may or may not have to pay for a service provided by a technician in the event of a call out. For example, there is no charge if the technician is called out once a year (and perhaps more) to replace a flat tyre with the spare tyre from the vehicle. There is a charge, however, if the technician is called out to replace a flat battery. The amount charged is usually the cost of the replacement car battery. The customer, therefore, receives a benefit for which he or she is not directly charged. Mr O’Neil says the Yes Assist product is similar to the RACV product. On that basis, I am prepared to infer that truck operators who sign up to Yes Assist receive benefits similar to what RACV provides to its customers, and those benefits are provided in addition to the benefits I described earlier.
The other submission raised by the Respondents is that Yes Assist does not operate in the industry of insurance and is not covered by the Award because it does not hold an Australian Financial Services License. In my view, this submission does not materially advance the Respondents’ case. The terms of the Award do not confine the definition of ‘insurance’ only to those employers that hold an Australian Financial Services License. While there seems to be in existence laws that regulate different forms of insurance (see for example, the Insurance Act 1973, or workers compensation legislation), none of that matters when assessing coverage under the Award. All that matters for the purposes of the Award is whether what is being offered falls within the definition of ‘all forms of insurance’ or whether the employer is properly considered to be a ‘service’ to the principal industries set out in clause 4.2 of the Award.
The First Respondent sought to distinguish the Yes Assist offering by claiming that Yes Assist was not engaged in the insurance industry, but in the industry of roadside assistance. That submission ought not be accepted. It does not accord with the facts. There is no evidence that Yes Assist actually provides roadside services – in fact, the evidence is to the contrary. Further, the submission fails to address squarely the matters I have raised regarding the nature of an insurance arrangement.
There are a range of other factors which also independently support a conclusion that Yes Assist is in insurance or that at the very least, it is providing services to the insurance industry. The Yes Assist product was derived from the insurance product offered by the First Respondent. It was initially part of the insurance offering to clients, but was removed from that product and offered as a standalone product. Further, the Yes Assist product is sold to existing customers of Yes Insurance. In that respect, it is at least in part, if not in whole, a complementary service to the insurance provided by Yes Insurance. The offering of such a complementary service is not uncommon in the industry. To use RACV as an example, it is well-known that its roadside assistance service complements its other insurance offerings such as motor vehicle insurance. Finally, there are the range of other factors that emerge from the evidence, including that Yes Assist is merely one division of the First Respondent’s business, that the remainder of the First Respondent’s business is an insurance business of approximately 12 year standing and that the First Respondent is the employer of all of the employees within Yes Assist.
When all of the matters above are considered, in my view, the First Respondent’s Yes Assist division is in insurance. The First Respondent is engaged in the insurance industry as defined in clause 4.1 and 4.2 of the Award including in respect of its Yes Assist division. The Yes Assist product is also a form of insurance that is provided by the First Respondent. The First Respondent in so far as it operates Yes Assist is a business caught by the phrase ‘all forms of insurance’. If I am wrong about this, I would nevertheless find for all of the reasons I have set out above that the First Respondent when providing Yes Assist is providing a service to the insurance industry as contemplated by the definition in clause 4.2.
The work and classification of Mr Hazari
The next question is whether the Award applies to the First Respondent in respect of work performed by Mr Hazari. The Respondents did not advance any submissions on this issue. It is, however, necessary to examine the matter in light of the application before me.
The classifications in the Award are set out at Schedule A. Relevantly, there are six classification levels in the Award each one of which contains descriptors pertaining to each classification along with an indicative job list. These classifications sit within an award that is industry based. A review of the classification descriptors discloses that the classifications are broad in nature and are seemingly intended to cover a range of work or occupations performed within the industry as defined. It is well understood and accepted that in determining whether an award covers an employee, an examination is necessary of the nature of the work undertaken and the circumstances in which the employee was employed to do the work. Award coverage is not to be determined simply by reference to a person’s job title.
Mr Hazari’s evidence in relation to the work he performed, and which I accept, is as follows. He was offered the position of Sales Consultant with the First Respondent. He was given a list of Yes Insurance clients and was told to sell the roadside assistance product to those clients. In the course of his duties, he created infrastructure (in the form of spreadsheets) in order to keep track of sales and sales pitches, and conducted market research on relevant competitors. He then proceeded to call the customers on the list and attempted to sell those customers the roadside assistance product.
When Mr Hazari’s evidence is considered, I find that there is a classification within the Award that covers the type of work performed by Mr Hazari. That classification is Level 3. Typical activities undertaken by an employee at Level 3 include preparing reports and recommendations within their own job function. The indicative job list identifies the role of ‘sales representative with at least 12 months experience’ as well as ‘insurance clerk’ and ‘account manager’. When Mr Hazari’s evidence is considered, I find that Mr Hazari, in respect of the work that he performed, was covered by the Level 3 classification in the Award. Not only did Mr Hazari perform work that is described by the classification descriptors in Level 3, but he also is a person with sales experience of ‘at least 12 months’.
Conclusion in respect of coverage under the Award
When all of the above matters are considered, I find that the First Respondent (including its Yes Assist division) is engaged in the banking, finance and insurance industry as defined in clauses 4.1 and 4.2 of the Award. I am further satisfied that the Level 3 classification within the Award covers the work performed by Mr Hazari and that Mr Hazari falls within the Level 3 classification. In those circumstances, the Award covered and applied to both the First Respondent and Mr Hazari.
DISPOSITION
The Court has before it five questions. Given the conclusions I have reached it is unnecessary for me to answer questions (a) and (b) in paragraph [8] of these reasons. The answer to question (c) in paragraph [8] of these reasons is ‘yes’.
The Respondents accepted that if I reached a conclusion that the Award covered the First Respondent in respect of its employment of Mr Hazari within the Yes Assist Division, the Court should proceed to make the declarations set out at paragraph [20] of the Statement.
I have considered the Statement and the material filed by the parties. I am satisfied that there is a basis for making the declarations set out at paragraph [20] of the Statement. Accordingly, the answer to question (d) in paragraph [8] of these reasons is ‘yes’, and the answer to question (e) in paragraph [8] of these reasons is that Compliance Notice is valid and, to use the language of the parties, is confirmed. The Application in a Proceeding filed by the Respondents must be dismissed.
I will make declarations in that form I have noted above. I will also make orders setting the matter down for hearing on penalty and orders for the filing of material in advance of that hearing.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 16 December 2021