Gray v Chandler Macleod Group Ltd ACN 090 555 052

[2021] ACAT 23

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GRAY v CHANDLER MACLEOD GROUP LTD ACN 090 555 052 [2021] ACAT 23

XD 702/2020

Catchwords:               CIVIL DISPUTE – jurisdiction of Tribunal – nature of relationship between parties – whether employment or contract – whether a matter arising in the application is a fair work claim – combined civil dispute and fair work claim – removal to Magistrates Court

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 16, 82A

Fair Work Act 2009 (Cth) ss 13, 323, 539
Magistrates Court Act 1930 s 266E

Tribunal:  Senior Member K Katavic

Date of Orders:  25 March 2021

Date of Reasons for Decision:      25 March 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 702/2020

BETWEEN:

LEE JOHN GRAY

Applicant

AND:

CHANDLER MACLEOD GROUP LTD ACN 090 555 052

Respondent

TRIBUNAL:Senior Member K Katavic

DATE:25 March 2021

ORDER

The Tribunal orders that:

1.The order dated 2 September 2020 is set aside.

2.The application is removed to the ACT Magistrates Court pursuant to subsection 82A(2) of the ACT Civil and Administrative Tribunal Act 2008.

………………………………..

Senior Member K Katavic

REASONS FOR DECISION

Introduction

1.The applicant in this matter has sought to recover damages from the respondent in relation to circumstances regarding a proposal to perform work for a client of the respondent.

2.The nature of the claim and the relationship between the parties raises an issue as to the Tribunal’s jurisdiction.

3.The applicant claims he is a contractor, not an employee and that he was offered a contract with the respondent’s client. He claims there was a failure on the part of the respondent to properly facilitate the commencement of that contract. He says he is entitled to be paid from the date of commencement up until the date the client withdrew the role.

4.The preliminary issue for the Tribunal is whether this was an employment relationship and whether a matter arising in the application amounts to a fair work claim.

Background

5.On 30 June 2020, the applicant lodged a civil dispute application against the respondent seeking to recover a debt and damages for breach of contract. The applicant claimed $13,893 plus filing and search fees (the application). The application was accompanied by several documents including an offer of assignment, various email exchanges, and other correspondence between the parties.

6.The tribunal did not serve a copy of the application on the respondent as the registrar raised concerns regarding jurisdiction. The application was listed for a jurisdictional hearing on 2 September 2020 before a member of the tribunal. Only the applicant was notified of that jurisdictional hearing and only the applicant attended.

7.On 2 September 2020, the Tribunal made the following order ex-parte:

After hearing from the applicant about the nature of his employment relationship with Chandler Macleod, it seems there is no ongoing relationship of employment and that he is employed as a casual on a contract basis. As the applicant is not an employee, the Tribunal has jurisdiction to hear the claim. The Tribunal orders:

1.       The application is to be served on the respondent.

8.The application was subsequently served by the tribunal by pre-paid post on 8 September 2020. It is not necessary for the purposes of this decision to set out a full procedural history other than to note an application for default judgment was made and granted and subsequently set aside. The matter was not resolved at a preliminary conference and the parties were directed to file documents in order to prepare the matter for a final hearing.

9.The applicant elected to rely upon the documents accompanying the application and was not directed to file anything in addition to that. The respondent filed and served material in response to the claim including a response dated 3 November 2020, written submissions, a timeline, a witness statement of Neville Smith dated 16 December 2020 and an exhibit book comprising 31 documents.[1]

[1] The written submissions, timeline and witness statement of Neville Smith were updated by the respondent on 15 February 2021 to account for typographical errors, missing words and incorrect pagination.

10.The matter was listed for hearing on 17 February 2021. At the commencement of the hearing I raised the issue of the Tribunal’s jurisdiction to hear the claim and invited the parties to make submissions on the nature of their relationship and whether a matter amounting to a fair work claim arose in the application. Neither party was legally represented, but both endeavoured to assist the Tribunal in relation to this issue.

The submissions of the parties

11.In deciding what the nature of the parties’ relationship is, and whether it raises a matter that amounts to a fair work claim, I have had regard to the submissions made orally before the Tribunal and principally the application, registration contract dated 22 July 2019,[2] and correspondence from the respondent dated 21 January 2020.[3]

[2] Respondent’s Exhibit CMG 31

[3] Attached to application

12.The applicant claims he is an independent contractor and not employed by the respondent. He submits that the correspondence from the respondent dated 21 January 2020 constitutes a contract for work with the National Disability Insurance Agency (NDIA) commencing at 9:00am on 28 January 2020 at a rate of $51.50 per hour (inclusive of any applicable casual loading and exclude superannuation as required by applicable legislation). The applicant submits that he did not commence at the NDIA as stated due to the respondent’s handling of certain documentation that was required to be submitted and suffered loss and damage as a result. The position with the NDIA was withdrawn on 16 March 2020.

13.The respondent submits the applicant is a casual employee of the respondent in accordance with the terms of the registration contract dated 22 July 2019. The respondent submitted that the applicant’s employment with the respondent was governed by the registration contract and subject to an assignment being offered by the respondent to the applicant to work for a client on terms specified in writing by the respondent. The respondent submits the correspondence dated 21 January 2020 is an offer of assignment to work at the NDIA, not a contract and subject to the terms and conditions set out in the contract of employment.

14.The registration contract contains a number of relevant provisions and key features.

15.It is called terms and conditions of employment. It states it is a contract of employment. Pursuant to clause 3 it states:

3.1    You are employed by the Company [the respondent] as a casual employee. This means that:

(a)you are paid and administered by the Company;

(b)your rate of pay includes a casual loading in lieu of paid leave, severance pay and all other entitlements associated with permanent employment;

(c)the Company is not obliged to offer you work, or ongoing work for any Client, and does not guarantee that you will have ongoing work;

(d)you are entitled to accept or reject any offers of work, or any Assignment, made to you by the company.

3.2You are employed as a casual “on-hire” employee of the Company. This means that:

(a)you are employed by the Company to perform work for the Company’s Clients on Assignments;

(b)the amount of work you receive on any Assignment is subject to the Client’s continuing requirement for services – as such, a Client may terminate an Assignment at any time, at its discretion;

(c)your continuing work on any Assignment is conditional upon you meeting all performance, behavioural, safety and conduct requirements set by the Company and the relevant Client;

(d)whether or not you meet or performance, behavioural, safety and conduct requirements set by the Company and the relevant Client, you are not entitled to ongoing work on any particular assignment;

(e)the terms and conditions of any Assignment, as confirmed by the Company, may differ from Assignment to Assignment and may be altered during the course of the Assignment;

(f)you are at all times an employee of the Company, and are subject to the Company’s control and direction; and

(g)you agree to comply with all day-to-day directions given to you by any authorised representatives of the Client on any Assignment, so as to properly discharge the duties and responsibilities of your position on that Assignment.

3.3You acknowledge and understand that:

(a)you are employed by the Company to work for its Clients on Assignments;

(b)the end of an Assignment does not mean that your employment by the Company has been terminated;

(c)the Company cannot give you any commitment in relation to the length of any Assignment as it does not have control over its Clients’ requirements for temporary employees;

(d)at the end of any Assignment, all your employment by the Company, you are not entitled to be paid any severance payment, or termination payment, unless specifically provided for in an applicable industrial instrument or confirm in writing by the Company.

16.The terms of the respondent’s contract with the NDIA were set out in a Work Order dated 9 January 2020,[4] which relevantly provides:

Pre-engagement Checks will be undertaken by NDIA and commencement is subject to the Specified Personnel meeting the standard in relation to the Pre-engagement Check requirements. The contractor must comply with and ensure ongoing compliance with the Pre-engagement Checks.

[4] Respondent’s Exhibit CMG 7 – see Item W Security Requirements

17.The Specified Personnel for the purposes of this requirement was the applicant.[5]

[5] Respondent’s Exhibit CMG 7 – see Item L Specified Personnel and Contractor Placement Staff

18.The issue in this dispute relates to the pre-engagement check process. In so far as it can be ascertained from the application, the applicant seeks to enforce the commencement of the Assignment from 28 January 2020 until 13 March 2020.

The Tribunal’s jurisdiction

19.Relevantly, section 16 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) establishes the tribunal’s civil dispute jurisdiction. It states:

16     Meaning of civil dispute and civil dispute application—Act

(1)     In this Act:

civil dispute means a dispute in relation to which a civil dispute application may be made.

civil dispute application means an application that consists of 1 or more of the following applications:

(a)a contract application;

(b)a damages application;

(c)a debt application;

(d)a goods application;

(e)a nuisance application;

(f)a trespass application;

(g)an application for a debt declaration;

(h)an application for a common boundaries determination;

(i)an application for an order under the Australian Consumer Law (ACT);

(j)an application stated to be a civil dispute application in an authorising law.

(2)     To remove any doubt, a civil dispute application does not include a fair work claim.

Note 1A fair work claim may be started in the Magistrates Court (see Magistrates Court Act 1930, pt 4.2A).

Note 2Orders may be sought for the contravention of a civil remedy provision in the Federal Court and Federal Circuit Court (see Fair Work Act 2009 (Cwlth), s 539).

20.Subsection 16(2) of the ACAT Act limits what a civil dispute application includes.

21.Section 82A of the ACAT Act provides:

82A   Removal from tribunal to Magistrates Court—combined fair work matter

(1)This section applies if, in the course of dealing with a civil dispute application, the tribunal becomes aware that a matter arising in relation to the application amounts to a fair work claim.

Example—matter arising in relation to application

a counter claim to the application

(2)The tribunal must order that the application and the matter (the combined fair work matter) be removed to the Magistrates Court.

(3)The tribunal may make the order on its own initiative or on application by a party to the matter.

(4)On removal of the matter to the Magistrates Court, the civil dispute application is taken to be finalised in the tribunal.

Note 1A fair work claim may be started in the Magistrates Court (see Magistrates Court Act 1930, pt 4.2A).

Note 2Orders may be sought for the contravention of a civil remedy provision in the Federal Court and Federal Circuit Court (see Fair Work Act 2009 (Cwlth), s 539).

22.A ‘fair work claim’ is defined by section 266E of the Magistrates Court Act 1930.[6] Under section 266E of the Magistrates Court Act, a fair work claim can be a general or a small claim. Both include a claim in relation to a ‘civil remedy provision’ as defined in section 539 of the Fair Work Act 2009 (Cth) (the Fair Work Act).

What is the relationship between the parties?

[6] ACAT Act dictionary (definition of ‘fair work claim’)

23.Having regard to the terms of the registration contract, prima facie, I find the applicant is an employee. That is his status under the agreement regardless of his understanding or belief. As such, the applicant falls within the framework of the Fair Work Act as a ‘national system employee’.[7]

Is this a ‘fair work claim’?

[7] See the Fair Work Act section 13

24.Section 539 of the Fair Work Act identifies what is a ‘civil remedy provision’ by referring to multiple provisions elsewhere within the Fair Work Act. I have reviewed these provisions.

25.The grounds of the applicant’s claim are that he was contracted by the respondent to commence work at the NDIA on 28 January 2020 until 31 December 2020. He claims he did not start on that date and was not paid. The contract was formally withdrawn on 13 March 2020. He claims he is entitled to be paid by the respondent for the period 28 January 2020 to 13 March 2020. In an undated letter of demand filed which his application, the applicant characterises his claim as being loss of income for 33 working days “made up of the contracted hourly rate and includes superannuation”.

26.The relief sought comprises $13,893 for the contract amount between 28 January 2020 and 13 March 2020, plus $159.50 for the filing fee and $9 for the ASIC search fee.

27.The claim amounts to an allegation that the respondent has failed to pay him for the NDIA Assignment, if, as the applicant asserts he was entitled to be paid for from the date he says it commenced.

28.Section 323 of the Fair Work Act deals with the method and frequency of payments. It relevantly states:

Method and frequency of payment

(1)     An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a)in full (except as provided by section 324); and

(b)in money by one, or a combination, of the methods referred to in subsection (2); and

(c)at least monthly.

Note 1:     This subsection is a civil remedy provision (see Part 4-1).

29.As I have found the applicant is an employee under the terms of the registration contract, the claim amounts to an alleged contravention of section 323. It is a civil remedy provision. Whether the applicant has performed work and whether the respondent was required to pay the applicant remains to be determined. Nonetheless, the allegation that arises in the application amounts to a fair work claim because it is a claim alleging an employer’s failure to pay an employee in contravention of section 323 which is a civil remedy provision.

30.Whether the applicant intended to make a fair work claim is irrelevant. He has not expressed his claim as being such. The substance of the claim and the relief sought are determinative of whether a matter arising under the claim amounts to a fair work claim. I am satisfied it does in the circumstances.

31.All that is required under section 82A of the ACAT Act is that the tribunal might become aware of a matter in the application that amounts to a fair work claim, irrespective of whether it has been expressly made. Parties may not always consciously commence a fair work claim in the tribunal or appreciate that the nature of the claim they have made amounts to a fair work claim. In circumstances where the tribunal becomes aware of a matter that amounts to a fair work claim it must refer it to the Magistrates Court. The tribunal does not have jurisdiction in relation to such a claim.

32.I do not regard myself as bound by the tribunal orders dated 2 September 2020. The orders were made in the absence of the respondent. Ideally, both parties would have been present, and the tribunal would have had before it documents relevant to the question of jurisdiction. It is regrettable that the matter was listed for final hearing before this issue was more fully considered.

33.If I am wrong about the question of jurisdiction and the Magistrates Court takes different view of the claim, it is a court of competent jurisdiction and able to determine the claim. For the Tribunal to hear and decide the application on its merits in circumstances where the Tribunal’s jurisdiction is questionable, would be in error and disadvantageous to the parties.

34.Where I have identified a matter arising in the application that prima facie amounts to a fair work claim I must order the application be removed to the Magistrates Court.

Conclusion

35.The applicant is an employee of the respondent and an issue in the proceedings relates to the respondent’s alleged failure to pay the applicant. Such a claim falls within section 323 of the Fair Work Act, being a civil remedy provision, which constitutes a fair work claim. Therefore, a matter arising under the application amounts to a fair work claim for which the Tribunal lacks jurisdiction to hear and must be removed to the Magistrates Court.

36.I make the following orders:

(a)The order dated 2 September 2020 is set aside.

(b)The application is removed to the Magistrates Court pursuant to subsection 82A(2) of the ACTCivil and Administrative Tribunal Act 2008.

………………………………..

Senior Member K Katavic

Dates of hearing:	17 February 2021
Applicant:	In person
Respondent:	Mr R Harden, authorised representative