Jay Leung v Brian Burgess as Trustee for Brian Burgess Family Trust, Binnia Downs Meat Co. Pty Ltd as Trustee for MCP Carr Investment Trust (in Partnership) t/a Kogarah Inn
[2015] FWCFB 5255
•9 SEPTEMBER 2015
| [2015] FWCFB 5255 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Brian Burgess as Trustee for Brian Burgess Family Trust, Binnia Downs Meat Co. Pty Ltd as Trustee for MCP Carr Investment Trust (in Partnership) t/a Kogarah Inn
(C2015/4353)
VICE PRESIDENT HATCHER |
|
Permission to appeal sought against decision in Transcript of Deputy President Booth at Sydney on 25 May 2015 in matter number U2015/2614.
[1] Mr Jay Leung has applied for permission to appeal an ex tempore decision issued by Deputy President Booth on 25 May 2015 (Decision). In the Decision the Deputy President dismissed an unfair dismissal remedy application lodged by Mr Leung pursuant to s.394 of the Fair Work Act 2009 (FW Act) on the basis that Mr Leung had not served the minimum employment period specified in s.383 of the FW Act. This decision is concerned with whether Mr Leung should be granted permission to appeal
[2] The background to the Decision requires some explanation. Mr Leung had previously worked at a hotel called the Kogarah Inn. It was established before the Deputy President that Mr Leung’s actual employer was a partnership (Partnership), in which the two partners were Brian Burgess as Trustee for the Brian Burgess Family Trust, and Binnia Downs Meat Co. Pty Ltd as Trustee for the MCP Carr Investment Trust. Mr Leung was dismissed approximately ten months after this employment commenced, and that dismissal was the subject of his application under s.394 of the FW Act.
[3] Under s.390(1)(a) of the FW Act the Commission must be satisfied that a person was “protected from unfair dismissal” before it can order an unfair dismissal remedy in respect of that person. Section 382 provides that one of the requirements for a person to be “protected from unfair dismissal” in respect of a particular employment is that the person must have been employed for the minimum employment period. Section 383 provides that the minimum employment period is six months except that in the case of a “small business employer” it is one year. Because Mr Leung’s employment only lasted about ten months, he would not have served the minimum employment period if the Partnership was a “small business employer”.
[4] Section 23 defines “small business employer” as follows:
23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.
[5] The expression “associated entity” in s.23(3) is defined in s.12 to bear the same meaning as in s.50AAA of the Corporations Act 2001. Section 50AAA provides:
Associated entities
(1) One entity (the associate ) is an associated entity of another entity (the principal ) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(4) This subsection is satisfied if:
(a) the associate controls the principal; and
(b) the operations, resources or affairs of the principal are material to the associate.
(5) This subsection is satisfied if:
(a) the associate has a qualifying investment (see subsection (8)) in the principal; and
(b) the associate has significant influence over the principal; and
(c) the interest is material to the associate.
(6) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the associate; and
(c) the interest is material to the principal.
(7) This subsection is satisfied if:
(a) an entity (the third entity) controls both the principal and the associate; and
(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.
[6] It can be seen that the ostensibly simple minimum employment period requirement in s.383 carries with it the potential for considerable complexity once s.50AAA comes into the picture. In this case the potential was realised because the business structure underlying and broadly associated with the Partnership was itself complex. Regrettably this posed particular difficulties for Mr Leung, who was self-represented and had no relevant expertise in these matters, in attempting to address this issue both at first instance and on appeal.
[7] In the Decision, the Deputy President made a finding that there were 12 persons who were definitely employed by the partnership at the Kogarah Inn. The Deputy President also allowed for the possibility, based on the evidence of Mr Leung, that there were a further two employees. This left the partnership below the threshold number of 15.
[8] The Deputy President then considered the position of employees at other hotels which were wholly or partly owned by what might broadly be described as interests associated with the Burgess family. In this connection the Deputy President made the following findings:
- the other hotels were owned by separate partnerships which were not related bodies corporate, making s.50AAA(2) inapplicable;
- there was no evidence that the Partnership controlled the owners of the other hotels, making s.50AAA(3) inapplicable;
- the owners of the other hotels did not control the Partnership, making s.50AAA(4) inapplicable;
- there was no evidence that any of the owners of the other hotels had a qualifying investment in the Partnership, making s.50AAA(5) inapplicable;
- there was no evidence that the Partnership had a qualifying investment in the owners of any of the other hotels, making s.50AAA(6) inapplicable; and
- the Burgess Trust trading as Brian Burgess Management Group (BBMG), which supplies management services to the Kogarah Inn and the other hotels, although influential in the management of the Kogarah Inn, did not control the Partnership, making s.50AAA(7) inapplicable.
[9] In his notice of appeal Mr Leung did not identify any particular error in the Decision. Instead, he sought to adduce new evidence in the appeal which he said would demonstrate that the outcome determined by the Deputy President was incorrect. As elaborated upon at the hearing of his application, there were three particular items of evidence which he sought to adduce:
(1) A letter from the owners/operators of a business named Calix Catering which had provided the bistro and function catering at the Kogarah Inn from January 2013 to November 2014. In this letter they asserted that BBMG owned and operated the Kogarah Inn, that Michael Burgess (the principal of BBMG) commenced and terminated their catering contract and made weekly visits to Kogarah Inn to liaise with the licensees on various matters, and that all persons communicated with Michael Burgess as the owner of the Kogarah Inn.
(2) A document indicating the existence of a partnership consisting of two partners, the Trustee for the Brian Burgess Family Trust and the Trustee for the Betsy Trust which traded as the Minto Inn. Mr Leung contended that the existence of the Minto Inn as part of the business structure was not adverted to in the hearing before the Deputy President.
(3) A document indicating that Binnia Downs Meat Co Pty Ltd (one of the partners in the Partnership) was not registered for GST.
Consideration
[10] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 1 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[11] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[12] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 2 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment3. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 4
[13] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 5 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.6
[14] As earlier stated, Mr Leung did not attempt to demonstrate any appealable error in the Decision as such. Instead, he applied to adduce new evidence which, he said, would demonstrate that the Deputy President’s conclusion was incorrect.
[15] The admission of evidence in an appeal in this Commission is generally guided by the following three principles stated in Akins v National Australia Bank 7:
- it must be shown that the evidence could not have been obtained with reasonable diligence for use at the proceedings at first instance;
- the evidence must be such that there must be a high degree of probability that there would be a different decision, and
- the evidence must be credible.
[16] It is only necessary to consider the second of these principles. We do not consider that there is any real possibility, let alone a high degree of probability, that the new evidence if admitted would change the outcome determined by the Deputy President. First, the letter from the owner/operators of Calix Catering simply does not bear upon the critical issue raised by s.50AAA(7), namely whether BBMG controlled the Partnership (as distinct from controlling the day-to-day running of the Kogarah Inn). Second, the disclosure of the existence of the partnership which trades as the Minto Inn does not itself say anything about the applicability of s.50AAA. Third, the fact that one of the partners in the Partnership is not registered for GST again does not say anything about the applicability of s.50AAA.
[17] We will not admit the new evidence. There is nothing else raised in the notice of appeal or Mr Leung’s submissions which otherwise challenges the Decision. We have perused the evidence before the Deputy President and the Decision, and we consider that the Deputy President was correct in determining that Mr Leung’s unfair dismissal remedy application had to be dismissed. There is no basis for us to be satisfied that the grant of permission to appeal would be in the public interest, and therefore in accordance with s.400(1) permission to appeal must be refused.
VICE PRESIDENT
Appearances:
J. Leung on his own behalf
P. Amos from Practical Workplace Relations as agent for the Respondent
Hearing details:
2015.
Melbourne:
25 August.
1 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
2 (2011) 192 FCR 78 at [43]
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
4 [2010] FWAFB 5343 at [27], 197 IR 266
5 Wan v AIRC (2001) 116 FCR 481 at [30]
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
7 (1994) 34 NSWLR 155 at 160
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