Kyle Bumpstead v Wyndham Central Secondary College

[2017] FWC 5794

[2017] FWC 5794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kyle Bumpstead
v
Wyndham Central Secondary College
(U2017/7170)

COMMISSIONER RYAN MELBOURNE, 21 NOVEMBER 2017

Application for an unfair dismissal remedy – jurisdictional objections - minimum employment period - small business – who is the employing entity.

[1] The Applicant was employed at Wyndham Central Secondary College as a gardener from 25 October 2016 until 16 June 2017.

[2] The employer, through the Department of Education and Training, filed a Form F3 – Employer response to Unfair Dismissal Application in which the employer identified itself as Wyndham Central Secondary College School Council and the employer raised a jurisdictional objection that the Applicant had been employed for less than 12 months and as the employer was a small business employer then the Applicant had not been employed for the minimum employment period.

[3] Notwithstanding the employer’s jurisdictional objection conciliation took place in July 2017 but without resolving the matter. Directions were issued to the parties in relation to the jurisdictional objection and the jurisdictional objection was subject to a hearing on 1 September 2017. At the hearing evidence was given by the Applicant and by Ms Gagatsis-Halge, Principal of Wyndham Central Secondary College and pursuant to s.2.3.6(2) of the Education and Training Reform Act 2006 (Vic) the executive officer of the Wyndham Central Secondary College School Council. Following the hearing the parties were directed to file final written submissions. The Respondent’s final reply submissions were filed and served on 13 November 2017. Throughout these proceedings the employer has been represented by the Department of Education and Training and the Applicant has been represented by Mr G Dircks of Just Relations – Consultants. The Commission granted permission to both the Applicant and the employer to be represented by a lawyer or paid agent.

[4] It was not surprising that the Applicant identified his employer as being Wyndham Central Secondary College as that was the name that appeared on his pay records. However, Wyndham Central Secondary College is not an employer and is not even a legal person.

[5] The Department of Education and Training contended that the employer of the Applicant was the Wyndham Central Secondary College School Council. The Form F3 filed by the Department of Education and Training identified the contact person for the Wyndham Central Secondary College School Council as Ms Gagatsis-Halge, the Principal of the School.

[6] In this matter there appears to be three possible employers of the Applicant – the Department of Education and Training, the Wyndham Central Secondary College School Council or a third party contractor to either of the first two possible employers. No-one suggested that the Applicant was employed by a third party contractor to either the Department of Education and Training or the Wyndham Central Secondary College School Council, which leaves either of those two as the employer.

[7] The legal analysis provided by the Department of Education and Training contended that the evidence, when understood in light of the legal analysis, meant that the Applicant was employed by the Wyndham Central Secondary College School Council and not by the Department of Education and Training.

[8] The Education Training and Reform Act 2006 (Vic) (the ETR Act) provides for the establishment of school councils and provides that school councils are incorporated bodies with specific powers and functions, including to employ persons:

2.3.8(1)     A school council, in accordance with this Act, may—

(a) employ—

(i) teachers for a fixed period not exceeding one year or on a casual basis; or

(ii) teacher aides; or

(iii) any other staff—

for the purpose of performing its functions and duties;

(b) employ any person to enable the council to do anything it is authorised to do by section 2.3.11 or Division 6.”

[9] The ETR Act provides for a Teaching Service to be employed by the Secretary. The Teaching Service includes:

(a) teachers; and
(b) principals and assistant principals; and
(ba) executives to perform duties in or outside a school; and
(c) persons engaged or employed as teacher aides, assistant teachers or to perform professional, administrative, clerical or computing or technical duties in schools; and
(d) any person in any other category of staff declared by Ministerial Order to be staff in schools who may be employed by the Secretary; and
(e) any other persons who are necessary for the purposes of this Act.

[10] There appears to be considerable overlap between the classes of persons who can be employed as part of the Teaching Service or be employed by a School Council. It is not surprising that this would be so given that it is not necessary that every school have a School Council and where a school does not have a School Council then all staff teaching and non-teaching would be employed by the Department of Education and Training or by a contractor to the Department of Education and Training. In the context of the present matter it is reasonable to contend, as the Applicant does, that his employer is the Department of Education and Training and not the Wyndham Central Secondary College School Council. Determination of the identity of the employer turns on the evidence presented in this matter.

[11] Evidence was provided through Ms Gagatsis-Halge of the following:

● the establishment of the Wyndham Central Secondary College School Council, and
● the operation of the Wyndham Central Secondary College School Council, and
● the identification of employees of the Department of Education and Training who worked at the School and identification of employees of the Wyndham Central Secondary College School Council.

[12] The evidence of Ms Gagatsis–Halge was that the Applicant was an employee of the Wyndham Central Secondary College School Council and that the Wyndham Central Secondary College School Council at the relevant time employed 12 employees. Whilst the Applicant had a different view of the world his evidence did not provide any reasonable basis for the Commission to discount or disbelieve the veracity of the evidence of Ms Gagatsis-Halge.

[13] The Commission is satisfied and so determines that the employer of the Applicant at the relevant time was the Wyndham Central Secondary College School Council.

[14] The amount of effort expended by both the Applicant and his representative and by the Respondent and the Department of Education and training in establishing the identity of the employer of the Applicant could have been avoided if both the Respondent and the Department of Education and Training ensured compliance with s.536 of the Act and Reg.3.46 of the Fair Work Regulations. The two provisions relevantly provide as follows:

“536 Employer obligations in relation to pay slips

(1) An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.

(2) The pay slip must:

(a) if a form is prescribed by the regulations—be in that form; and

(b) include any information prescribed by the regulations.”

“3.46 Pay slips—content

(1) For paragraph 536(2)(b) of the Act, a pay slip must specify:

(a) the employer’s name; and

(b) the employee’s name; and

(c) the period to which the pay slip relates; and

(d) the date on which the payment to which the pay slip relates was made; and

(e) the gross amount of the payment; and

(f) the net amount of the payment; and

(g) any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; and

(h) on and after 1 January 2010—the Australian Business Number (if any) of the employer.”

[15] The Department of Education and Training correctly made the submission that “a school is not a legal entity and cannot employ staff”. However, the regular pay records provided to the Applicant, including his annual PAYG Payment Summary, identify the employer as Wyndham Central Secondary College and provide the employers ABN as 82735158445.

[16] The requirement in reg 3.46(1)(a) is that a pay slip must specify the employer’s name. It is so obvious that the pay slips given to the Applicant did not do this. Whilst the pay slips do provide the information required by reg 3.46(1)(h) – the employers ABN that does not overcome the failure to provide the correct name of the employer. The evidence of Ms Gagtsis-Halge was that employees of the Department of Education and Training who were employed at Wyndham Central Secondary College received pay slips which correctly identified the Department of Education and Training as their employer. If the Applicant’s pay slips had correctly named his employer, some of the issues in this matter would not have arisen. Given that the Wyndham Central Secondary College School Council pays its employees through the Edupay system, it would appear that the Department of Education and Training should have ensured that the Edupay system correctly names the employer of employees.

[17] The next issue to be determined is whether the Wyndham Central Secondary College School Council is a small business employer. It is clear from the evidence that the Wyndham Central Secondary College School Council only employed 12 employees at the time of the dismissal of the Applicant. The Commission raised with the parties the operation of s.23(3) of the Act which requires that employees of associated entities must be taken into account when establishing the number of employees of an employer. At first glance it would appear that the Wyndham Central Secondary College School Council and the Department of Education and Training are associated entities.

[18] The Department of Education and Training drew attention to the provisions of s.50AA, 64A and 9 of the Corporations Act 2001 (the Corporations Act).. The associated entities provisions only apply to those bodies which are defined as being entities. S.64A of the Corporations Act makes clear that an exempt public authority cannot be an entity for the purpose of the Corporations Act. Section 9 of the Corporations Act defines an exempt public authority as:

“exempt public authority " means a body corporate that is incorporated within Australia or an external Territory and is:

(a) a public authority; or

(b) an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory.”

[19] The Department of Education and Training correctly contends both that (1) the Wyndham Central Secondary College School Council is either an agency or instrumentality of the Crown or is a public authority, and (2) that the Crown (in this case either the Minister or the Department of Education and Training) is a body politic and cannot be an entity for the purposes of s.50AAA of the Corporations Act. As the Department of Education and Training put part of its submission:

“93. The Minister has a high level of control over the functions and powers of the school council, down to its very existence. The Minister is entitled to act if there is no school council, and the school council is accountable to the Minister for its performance pursuant to Ministerial orders. School councils clearly perform a state government purpose in relation to the governance and operation of government schools. Accordingly, the school council is an instrumentality or agency of the Crown in right of the State of Victoria.

94. To the extent it is not an agency or instrumentality of the Crown, the school council would be a public authority.

95. Accordingly, the school council is not an entity for the purposes of s 50AAA of the Corporations Act, and can neither be, nor have, any associated entity whose employees fall to be included in the calculation employee numbers for the purposes of determining status as a small business employer.”

[20] The Commission accepts that the Wyndham Central Secondary College School Council does not have any associated entities and given that it had at the relevant time only 12 employees it is a small business employer.

[21] The minimum employment period for an employee of a small business employer is 12 months. In the present matter the Applicant has not served the minimum employment period and therefore the Applicant is not a person protected from unfair dismissal. The application in this matter is dismissed for want of jurisdiction.

Observation

[22] In his final written submissions Mr Dircks for the Applicant contended as follows:

“44.……. it simply was not the intention of Fair Work Act 2009 to regard every Victorian public education system school as a potential small business employer - with protection against unfair dismissal claims, exclusion of their employees from rights that otherwise apply in the public sector, or the special consideration of Small Business Fair Dismissal Code.

45. The Explanatory Memorandum states:

204. The new system will remove the 100 employee exemption introduced under Work Choices and instead introduce new qualifying periods that have to be met before an unfair dismissal claim can be made - 12 months for employees of businesses with fewer than 15 employees and six months for employees in businesses with 15 or more employees. Casual employees will no longer be excluded but will have to meet the same qualifying periods as permanent employees, provided that they have been employed on a regular and systematic basis for the requisite period and they had a reasonable expectation of continuing employment by the employer.

46. It seems unlikely that the Parliament in drafting the more favourable unfair dismissal provisions for small business really had in mind that it would impact on certain employees employed in the Victorian public education sector.

47. According to Victorian government statistics (online site), there are 1,528 government schools in Victoria teaching 603,000 enrolments.

48. It is a perversion of the privileged position accorded small business employers where such an employer has all the resources at its disposal of the Victorian government, such as the numerous lawyers involved in this case in defending the so-called small employer.

49. There is no obvious intention of the federal parliament to give this special status to any group of public sector employees.”

[23] It certainly appears to be a perverse outcome that the Wyndham Central Secondary College School Council (and most likely most other school councils) receives the benefit of being a small business. The Principal of a school is always the executive officer of a School Council and Principals always have access the resources of the Department to assist them carry out their duties, including the duty of being executive officer of a School Council.

[24] As perverse as it may be that School Councils can be small businesses and can rely on the Small Business Fair Dismissal Code even when their executive officer is the school principal and the Department of Education and training advises and represents the School Council, this is exactly the result provided for by the Fair Work Act2009 and the Education and Training Reform Act 2006 (Vic). It may be perverse but it is certainly the specific outcome determined by both the State and Federal Parliaments.

COMMISSIONER

Appearances:

G. Dircks for the Applicant

R. Preston, of Counsel, for the Respondent

Hearing details:

2017.

Melbourne:

September 1.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR597473>