Jennifer Hawke v Turramurra Supermarkets Pty Ltd T/A IGA Telopea

[2016] FWC 6359

[2016] FWC 6359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jennifer Hawke
v
Turramurra Supermarkets Pty Ltd T/A IGA Telopea
(U2016/1774)

COMMISSIONER JOHNS SYDNEY, 14 SEPTEMBER 2016

Application for relief from unfair dismissal – jurisdiction – minimum employment period – transfer of business.

Introduction

[1] On 15 April 2016 Jennifer June Hawke (applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (Act) for a remedy in respect of her dismissal by Turramurra Supermarkets Pty Ltd T/A IGA Telopea (new employer/respondent/Turramurra).
[2] On 28 April 2016 the respondent filed a response to the unfair dismissal application. It raised a jurisdictional objection to the Commission hearing and determining the matter on the basis that, it submitted, the applicant’s employment did not meet the minimum employment period under section 382 of the Act.
[3] Conciliation was attempted, but the matter remained unresolved. Consequently the matter was listed for hearing.
[4] At the hearing of the matter on 19 August 2016, Mr M Worsley from the Shop Distributive and Allied Employees’ Association NSW Branch (SDA) appeared on behalf of the applicant. Mr B Gelonesi, Director, appeared on behalf of the respondent.
[5] Before determining whether the dismissal of the applicant was harsh, unjust or unreasonable, I must decide the jurisdictional objection raised by the respondent.
Background
[6] The SDA submitted that the applicant’s accumulated length of service was 23 years served across multiple employers (there being a transfer of business in each case). The transfers occurred on or around the following dates:

● February 1993: first employed with Coles Supermarkets (Australia) Pty Ltd;

● December 2009: transfer to Foodworks Retail Pty Ltd;

● July 2010: transfer to Arora Supermarkets Pty ltd (Arora/old employer); and

● 14 February 2016: alleged transfer to Turramurra Supermarkets Pty Ltd.

[7] Mr Gelonesi provided a brief recount of the circumstances leading up to the dismissal. They are as follows:

● Melani Brothers Pty Ltd (Melani Brothers) is the lessor of the Telopea property (property) where the respondent conducts its business.

● Prior to the alleged transfer of business, the property was subject to a lease to Metcash and sublease to Arora.

● The respondent negotiated with Metcash to take over the sublease from Arora.

● However, the Melani Brothers demanded that the property be made good by Arora before the lease to the respondent was signed.

● Arora did not have the funds to make good on the property. Therefore the Melani Brothers continued to refuse a sublease to the respondent until the make good had been completed.

● In the meantime, the Melani Brothers allowed the respondent to operate on the property by way of a license.

● Metcash then suggested that, since Arora had “walked off the reservation”, that the respondent should sell the remaining stock left behind by Arora, and use the money from the sales to make good on the property, and if there was a residual cost, Metcash would cover that.

● This suggestion was taken up and the parties agreed to proceed in this fashion.

[8] The applicant relies on section 22(7)(b) of the Act submitting that:

a) there was a transfer from Arora to the respondent;
b) the transfer was a transfer of business; and
c) the applicant’s period of employment was continuous because she was a transferring employee;

thereby satisfying the minimum employment period
[9] The respondent submitted that Ms Hawke cannot be a transferring employee because there was no transfer of business between Arora and the respondent, and therefore the applicant’s previous employment period should not be counted towards her service with the respondent.
[10] In effect, the jurisdictional objection of the respondent hinges on whether or not, pursuant to section 311 of the Act, there is a transfer of business between the old employer and the new employer.

Legislation

[11] The jurisdictional objection has been made in relation to the Division 2 of the Act. Section 382 provides as follows:

“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:

(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[12] Section 383 of the Act provides the meaning of minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[13] Section 384 defines the meaning of a period of employment:

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

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

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

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

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

[14] Section 22 sets out the meaning of service and continuous service:

22 Meanings of service and continuous service

…

When service with one employer counts as service with another employer

(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.

Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).

(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.

Note: For example:

(a) the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and

(b) if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.

Meaning of transfer of employment etc.

(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a) the following conditions are satisfied:

(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b) the following conditions are satisfied:

(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

(8) A transfer of employment:

(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and

(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.

[15] In order to be protected from unfair dismissal Ms Hawke must have served a minimum employment period with the respondent. In this case, the respondent indicated that it had 42 employees at the time of the applicant’s dismissal, meaning the minimum employment period is 6 months. It is not disputed that the applicant’s employment with the respondent began on 15 February 2016 and subsequently ended in April 2016, i.e totalling a maximum of two months employment with the respondent. Therefore, it must be proven that there was a transfer of business from Arora to the respondent in order for the applicant’s employment period to be 6 months or greater.
[16] Section 311 of the Act sets out the meaning of ‘transfer of business’ and ‘transferring employee’ as referred to in subsection s384(2)(b) as follows:

311 When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

Meaning of transferring employee

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

…

Consideration

[17] It appears uncontested that the requirements in section 311(a),(b) and (c) of the Act are satisfied, however for the sake of completeness I will address these elements:

Employment of an employee of the old employer has terminated.

[18] It is clear from the facts of the case that the applicant’s employment ceased upon the acquisition of the business by the respondent on 15 February 2016. The Commission, as presently constituted, is satisfied that the applicant’s employment with the old employer was terminated.

Within 3 months after the termination, the employee becomes employed by the new employer.

[19] The applicant was offered a contract of employment on 15 February 2016, which was subsequently signed and accepted within three months of termination from the old employer. The Commission, as presently constituted, is satisfied that Ms Hawke became an employee of the new employer within 3 months of the cessation of her employment with the old employer.

Nature of the work with the new employer is the same as the old employer

[20] It is uncontested that the applicant carried out the role of a store clerk with the old employer and was then offered the same position with the new employer.
[21] The main contested issue arises out of section 311(d), which requires there to be a “connection between the old employer and the new employer” as defined in any of subsections 311(3) to (6) of the Act.
[22] The applicant submitted that section 311(3) is the most relevant to its case. It submitted there was a transfer of assets from the old employer to the new employer. The applicant did not submit, nor do I find that any of subsections 311(4) to (6) of the Act apply.
[23] The Commission must therefore consider whether there was a transfer of assets from Arora to Turramurra within the meaning of section 311(3) of the Act. If the elements under s.311(3) are satisfied, by virtue of its interaction with s.311(1)(d), it must follow that there was a transfer of business.
[24] Section 311(3) of the Act sets out the elements which must be satisfied to prove that there is a transfer of assets from the old employer to the new employer as follows:

s.311(3) Transfer of assets from old employer to new employer
(3)  There is a connection between the old employer and the new employer if, in accordance with an arrangement between:
   (a)  the old employer or an associated entity of the old employer; and
   (b)  the new employer or an associated entity of the new employer;
the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
   (c)  that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and
   (d)  that relate to, or are used in connection with, the transferring work.

…

Was there an arrangement between the old employer and new employer about the ownership or beneficial use of assets once belonging to the old employer?

[25] The first question the Commission must ask is whether there was an arrangement between the old employer and the new employer to transfer Arora’s assets to Turramurra. The respondent submitted that, as a result of the Supreme Court’s decision in Arora Supermarkets Pty Limited v Franklins Pty Limited [2015] NSWSC 1766 (which involved a separate dispute regarding the renewal of Arora’s tenancy at the property), Arora had to exit the premises and make good the property by 3 August 2015. The respondent submitted that for this reason, Arora’s ability to enter into any arrangement with a new business owner was limited to 3 August 2015. The respondent says this date strips Arora of any legal capacity to enter into any arrangement with a new employer.
[26] Further, the respondent submitted that all arrangements with respect to its acquisition of the business at Telopea were only between itself and Metcash. The respondent acknowledges that, by way of a suggestion from Metcash, in order to make good on the property, there was an agreement between itself, Arora Metcash and Melani Brothers to take Arora’s saleable stock and use the funds from that to pay for the make good. 1

The respondent made the following submissions in regards to how the agreement came about:

“Arora Supermarkets was required to make good and return the premises in its original condition to the landlord by 14 February 2016.  Arora Supermarkets was unable to do so and approached Turramurra Supermarkets to seek assistance with respect to Arora’s exit, given that Turramurra Supermarkets was the incumbent lessee.

On January 23 2016 a meeting between Arora and Turramurra was held on site to discuss make good.  At that meeting Arora Supermarkets disclosed to Turramurra that it had no funds and was unable to make good. It’s only source of cash was the remaining unsold stock.

Turramurra Supermarkets agreed to take Arora’s saleable stock and use the funds from that stock to pay for the make good, provided that there were sufficient funds to do so…”

[27] The applicant submitted that while it may have been Metcash’s recommendation to enter into an arrangement where Turramurra would use Arora’s saleable goods to make good on the property, it says, the arrangement was entered into by the respondent and Arora in a meeting on 23 January 2016.
[28] The words “in accordance with an arrangement” were considered by the Full Bench of the Commission in John Lucas Hotel Management Services (t/as World Square Pub) v Hillie4 (Hillie) as follows:

“[19] We agree with Commissioner Bissett in Zabrdac that guidance as to the use and meaning of the word “arrangement” can be found in a previous judgements concerning trade practices and taxation matters. In Australian Competition & Consumer Commission v CC (NSW) Pty Ltd Lindgren J considered the meaning of “arrangement or understanding”. He noted:

‘135 In Newton v Federal Commissioner of Taxation [1958] UKPCHCA 1; (1958) 98 CLR 1 the Privy Council was concerned with the expression "[e]very contract, agreement, or arrangement" in s 260 of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth), and expressed the opinion (at 7):

"that the word `arrangement' is apt to describe something less than a binding contract or agreement, something in the nature of an understanding between two or more persons - a plan arranged between them which may not be enforceable at law." (emphasis supplied)

Clearly, the scope of ss 45(2) and 45A(1) with which I am concerned extends beyond legally enforceable agreements, that is, contracts.

136 In British Basic Slag Ltd v Registrar of Restrictive Trading Agreements [1963] 1 WLR 727, the English Court of Appeal had to consider the meaning of the expression "any agreement or arrangement, whether or not it is or is intended to be enforceable" in s 6 of the Restrictive Trade Practices Act 1956 (UK). It was argued that the trial Judge had erred in holding that an arrangement within the meaning of the expression exists when, by communications between the parties, "each has intentionally aroused in the other an expectation that he will act in a certain way." It was submitted that the expression also required "that there must be mutuality in the acceptance of rights and obligations". In the Court of Appeal, Willmer LJ said (at 739):

" ..., I think it is highly significant that Parliament did not see fit to include any definition of `arrangement.' I infer from this that it was intended that the word should be construed in its ordinary or popular sense. Though it may not be easy to put into words, everybody knows what is meant by an arrangement between two or more parties. If the arrangement is intended to be enforceable by legal proceedings, as in the case where it is made for good consideration, it may no doubt properly be described as an agreement. But the Act of 1956 clearly contemplates that there may be arrangements which are not enforceable by legal proceedings, but which create only moral obligations or obligations binding in honour. This seems to me to be entirely consistent with the dictum of Upjohn J. to which I have already referred. Nor do I consider that there is any inconsistency between that and the view expressed by the judge in the present case. For when each of two or more parties intentionally arouses in the others an expectation that he will act in a certain way, it seems to me that he incurs at least a moral obligation to do so. An arrangement as so defined is therefore something `whereby the parties to it accept mutual rights and obligations.'"

In the same case, Diplock LJ said that there were many ways in which arrangements might be made and (at 747):

"[I]t is sufficient to constitute an arrangement between A and B, if (1) A makes a representation as to his future conduct with the expectation and intention that such conduct on his part will operate as an inducement to B to act in a particular way, (2) such representation is communicated to B, who has knowledge that A so expected and intended, and (3) such representation or A's conduct in fulfilment of it operates as an inducement, whether among other inducements or not, to B to act in that particular way." (at 747)

137 In Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24

FLR 286, a Full Court of this Court had to consider the expression "a contract,

arrangement or understanding to the extent that it is in restraint of trade or commerce" in the then s 45(2)(b) of the Act. Smithers J referred to Newton and British Basic Slag and said (at 291) of the expression "arrangement", that by parity of reasoning with British Basic Slag:

" ... the existence of an arrangement of the kind contemplated in s.45 is conditional upon a meeting of the minds of the parties to the arrangement in which one of them is understood, by the other or others, and intends to be so understood, as undertaking, in the role of a reasonable and conscientious man, to regard himself as being in some degree under a duty, moral or legal, to conduct himself in some particular way, at any rate so long as the other party or parties conducted themselves in the way contemplated by the arrangement."

His Honour added:

"Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act."

138 In Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 40 FLR 83, Fisher J considered the notion of a "contract, arrangement or understanding" in the context of s 45 of the Act. After setting out certain passages from the cases, his Honour concluded (at 89):

"A significant feature of each of the above passages is the emphasis placed upon the necessity for each of the parties to have communicated with the other, for each to have raised an expectation in the mind of the other, and for each to have accepted an obligation qua the other. These are in my opinion the essential elements of the requisite meeting of minds." (emphasis supplied)

(His Honour appears to have seen the words "arrangement" and "understanding" as synonymous in the present context, as Toohey J seems to have done in Hughes v Western Australian Cricket Association (Inc) (1986) 19

FCR 10 at 32.)

139 On appeal in the Nicholas Enterprises case (see Morphett Arms Hotel Pty Ltd v Trade Practices Commission [1980] FCA 46; (1980) 30 ALR 88), the Full Court expressed agreement with Fisher J's statement and application of the relevant principles of law subject to one qualification: the Court thought it possible to have an understanding restricted to the conduct which one of the parties to it would pursue "without any element of mutual obligation, in so far as the other party or parties to the understanding are concerned" (at 91-92). It was not, however, necessary for their Honours to reach any final view on this question which has since been left open, although the view has been expressed that in an arrangement or understanding where one party assumes an obligation, a reciprocal obligation would commonly be assumed by the other party or parties; see Trade Practices Commission v Email Ltd [1980] FCA 86; (1980) 43 FLR 383 (Lockhart J) at 395-397; Trade Practices Commission v Parkfield Operations Pty Ltd [1985] FCA 27; (1985) 5 FCR 140 (Fox J) at

144; Trade Practices Commission v Service Station Association Ltd [1993]

FCA 405; (1993) 44 FCR 206 (FC) at 230-231 (Lockhart J), 238 (Spender and

Lee JJ).

140 The present case does not raise the issue of the undertaking of an obligation by one Tenderer and not by the others: the positions of all four Tenderers were relevantly identical.

141 The cases require that at least one party "assume an obligation" or give an "assurance" or "undertaking" that it will act in a certain way. A mere expectation that as a matter of fact a party will act in a certain way is not enough, even if it has been engendered by that party. In the present case, for example, each individual who attended the Meeting may have expected that as a matter of fact the others would return to their respective offices by car, or, to express the matter differently, each may have been expected by the others to act in that way. Each may even have "aroused" that expectation by things he said at the Meeting. But these factual expectations do not found an "understanding" in the sense in which the word is used in ss 45 and 45A. The conjunction of the word "understanding" with the words "agreement" and "arrangement" and the nature of the provisions show that something more is required. With respect, the first passage set out above from the judgment of Smithers J in Top Performance Motors, although addressing the term "arrangement", seems to me to describe appropriately that further necessary element of the "understanding" to which the provisions refer.’

[20] In accordance with the Explanatory Memorandum the word “arrangement” should be interpreted broadly. It certainly need not imply a formal let alone legally enforceable agreement between the two parties. However, the expression must still be given some content. From the authorities it can be concluded that for an “arrangement” to exist one party must have assumed at least a moral obligation, or given an “assurance” or “undertaking” that it will act in a certain way.” [Endnotes not reproduced]

[29] The respondent submitted that no such arrangement was possible with Arora because:

“

1. Arora was unable to demonstrate that it had any form of ownership of any of the assets that it used in its supermarket business at Telopea. It did have beneficial use of Westpac’s equipment but made no arrangements what so ever to transfer those assets to Turramurra. Hence it was not possible for Turramurra to enter into any arrangement with Arora.

2. Arora had no rights to occupy the premises, and more importantly, Arora had no rights either in law or equity to transfer their former right to occupy the premises to anyone.

3. At no time was there any agreement between Arora and Turramurra about the transfer of Arora’s purported assets.

4. The only asset that Arora owned was a quantity of groceries. The arrangement between Arora and Turramurra was that Arora’s stock be converted to cash and the proceeds of the conversion be held in trust for Arora in order that Arora can pay for the make good required pursuant to the lease.”

[30] The applicant submitted that an arrangement was entered into, to which Turramurra held the following obligations:

“

a. Arora Supermarkets would allow the Respondent to sell the stock owned by Arora Supermarkets;

b. The respondent would use the cash from the sale of the stock to make good on Arora Supermarkets’ lease;

c. Metcash would pay for the remainder of the cost of the make good; and

d. Once the property was made good Melani Brothers would approve a lease of the Respondent.”

[31] The applicant referred in its submissions to the Decision of Commissioner Bissett in Peter Zabrdac v Transclean Facilities Pty Ltd [2011] FWA 4492, where the Commissioner examined the Hillie matter, and summarised the authorities as follows:

[74] These decisions provide authority for the proposition that an arrangement, whilst not necessarily legally enforceable, requires:

● That there be communication between the parties to the arrangement; and

● That the parties must reach some understanding; and

● That there is some expectation that each of the parties will behave in a particular way.

[32] The applicant submitted that the respondent fulfilled each of the elements summarised by Commissioner Bissett in that:

● there was communication between Arora and the respondent, specifically, during the meeting of 23 January 2016. Present at that meeting was Mr Ajay Arora on behalf Arora, Mr Gelonesi on behalf of Turramurra and representatives for Melani Brothers and Metcash;

● the parties understood that an arrangement had been reached; and

● there were obligations on the parties and an expectation in both parties’ minds, that the respondent would use the sale of the stock to make good.

[33] Having considered all the evidence before it, the Commission, as presently constituted, is satisfied that there was an arrangement between Arora and the respondent to ensure that the make good was completed. The respondent’s submission that Arora was not able to show any form of ownership over assets held at the Telopea property, and that Arora did not hold any rights over the property itself, does not detract from the fact that an agreement to use the saleable goods remaining in the store to make good on the property was reached between Arora and the respondent.
[34] Further, notwithstanding the arrangement arose from Metcash’s suggestion, the Commission, as presently constituted, finds that this does not detract from the fact that a final agreement was reached between Arora and the respondent. The presence of Metcash and the Melani Brothers at the meeting of 23 January 2016 also does not detract from the agreement reached by Arora and the respondent. The Commission finds that, had either Arora or the respondent not participated in the meeting on 23 January 2016, the agreement could not have been made. Therefore, both Arora and Turramurra were parties to the arrangement.
[35] Therefore, this factor weighs against upholding the respondent’s jurisdictional objection and, weighs in favour of granting the applicant the opportunity to have her matter proceed to a substantive hearing.

The new employer owns or has beneficial use of the assets in connection with the transferring work.

[36] It is apparent that the arrangement between Arora and the respondent was a result of the old employer’s inability to make good on the property. It then becomes a matter of whether or not, “in accordance with the arrangement” between Arora and Turramurra, the transfer of stock amounts to Turramurra owning or having beneficial use of some or all of the assets that relate to or were used in connection with the transferring work that Arora undertook.
[37] Mr Gelonesi was cross examined by Mr Worsley and gave evidence stating that the stock which was used to make good on the property was held on trust for Arora, in order to make good on the property otherwise the lease could not be executed. 2 Further, Mr Gelonesi gave evidence that the arrangement was made with the primary concern of satisfying the lessor’s requirements, and that the usual process of acquiring and setting up a store was frustrated because of issues surrounding Arora’s failure to make good. Mr Gelonesi submitted that the beneficiary of the arrangement between Arora and Turramurra was the Melani Brothers.3
[38] Having considered all the materials filed by the parties, I am not satisfied that Turramurra ever owned or had the beneficial use of the assets of Arora. Turramurra did not use the assets for itself. Turramurra did not have the benefit of the assets (as that phrase is properly understood to mean).
[39] The argument which seemed to be made by Mr Worsley is that the benefit to the respondent was that it was able to use the stock to make good on the property and therefore receive a store that was not dilapidated. 4 That is a highly tentative link and novel use of the phrase ‘beneficial use’. I reject it.

There is no doubt that the burden to make good on the property was a burden initially imposed upon the old employer. Subsequently, the arrangement between Arora and Turramurra was made to satisfy Arora’s obligation to the lessor. Arora allowed Turramurra to use the stock within the store for the benefit of Arora not Turramurra.

[40] For the reasons outlined above, the Commission, as presently constituted, is not satisfied that there was an arrangement between Arora and Turramurra whereby Turramurra had ownership or beneficial use of some or all of the assets of Arora.
[41] Given the Commission’s finding that there was no transfer of assets from Arora to Turramurra pursuant to s.311(3) of the Act that would establish a connection between them for the purposes of s.311(1)(d) of the Act, it follows that there was no transfer of business within the meaning of s.311 of the Act.
[42] Subsequently, the conditions in s.22(7) and therefore, s.22(5) of the Act are not satisfied and Ms Hawke’s employment period with Arora does not count towards her total employment period.
[43] Therefore, the Commission, as presently constituted, finds that Ms Hawke has not completed the minimum employment period with Turramurra, and by virtue of the same, is not a person protected from unfair dismissal under the Act.
[44] The unfair dismissal application of Ms Hawke is dismissed and an order to that effect will be issued with this decision.

COMMISSIONER

Appearances:

M Worsley, Shop Distributive and Allied Employees’ Association NSW for the applicant

B Gelonesi, for the respondent

Hearing details:

Sydney

19 August,

2016

Final written submissions:

Applicant: 2 September 2016

Respondent: 2 September 2016

 1   PN50

 2   Transcript PN69

 3   Transcript PN77 – PN80

 4   Transcript PN109-110

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