Martin v Fresho Foods Pty Ltd
[2009] FMCA 15
•27 January 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARTIN v FRESHO FOODS PTY LTD | [2009] FMCA 15 |
| INDUSTRIAL LAW – Continuing operation of State Award after reform commencement date. INDUSTRIAL LAW – Alleged breach of APCS and NAPSA where business transmitted after reform commencement date – whether provisions apply only to transferring employees. INDUSTRIAL LAW – Whether named persons were employees of the respondent or independent contractors. INDUSTRIAL LAW – Alleged breach of clause 28(2) of Schedule 9 to the Workplace Relations Act. |
| Workplace Relations Act 1996, ss.5, 171, 172, 178, 182, 204, 208, 216, 577, 580, 581, 598, 717, 718, 719 – Schedule 8, clauses 1, 2, 31, 32, 33, 34, 43 - Schedule 9, clauses 1, 4, 19, 28, 31 |
| PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Country Metropolitan Agency Contracting Services Pty Ltd v Slater (2003) 124 IR 293 |
| Applicant: | SHELBY MARTIN |
| Respondent: | FRESHO FOODS PTY LTD ACN 120 091 296 |
| File Number: | BRG 747 of 2007 |
| Judgment of: | Wilson FM |
| Hearing date: | 10 March 2008 |
| Date of Last Submission: | 10 March 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 27 January 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Horneman-Wren |
| Solicitors for the Applicant: | Corrs Chambers Westgarth |
| Counsel for the Respondent: | N/A |
| The Respondent in person: | Mr Pirrottina |
ORDERS
It is declared that:
(a)The Respondent is bound by the rates of pay prescribed by the Jam, Preserve Fruit and Vegetable Processing Award - Southern Division, Eastern District (No. AR22 of 2002) as adjusted by the Australian Fair Pay Commission effective from 1 December 2006 and 1 October 2007 in respect of the following persons:
(i)Salvatore (Sam) Sangricoli;
(ii)Mark Pearson;
(iii)Daniel Bennett;
(iv)Mel Smith;
(v)Melvyn (Mal) Bradford
(vi)Leanne Sangricoli;
(vii)Daniel Terry;
(viii)Alison Bold;
(ix)Nigel O’Brien;
(x)Julia Amos;
(xi)Robert Grant; and
(xii)James Odering
(b)The Respondent is bound to pay overtime by clause 4.3 of the said Award if the persons identified in subparagraph (a) hereof otherwise satisfied the requirements of that clause;
(c)The persons identified in subparagraph (a) hereof were employees of the Respondent at all material times;
(d)In so far as the Respondent has failed to pay the persons identified in subparagraph (a) hereof the rates of pay and overtime that it was bound to pay, the Respondent has breached applicable provisions by which it was bound;
(e)The Respondent has contravened clause 28(2) of Schedule 9 to the Workplace Relations Act 1996 in respect of each of the persons identified in subparagraph (a) hereof.
The hearing be adjourned to 10 am on 6 March 2009 to determine what penalty or penalties should be imposed on the Respondent, and what other orders, if any, should be made pursuant to s.719(6) of the Act.
The Applicant shall, within 14 days, prepare a schedule consistent with the Reasons for Judgment setting out the amount of alleged underpayment of wages and non payment of overtime in respect of each of the persons identified in order 1(a) hereof, and shall provide a copy of such schedule to the Respondent.
The Respondent shall, within 14 days of receipt of the said schedule notify the solicitors for the Applicant:
(a)Whether there is any, and if so what, disagreement as to any matters contained within the schedule, giving full particulars of such disagreement;
(b)What amount the Respondent contends for in each case where there is disagreement.
Any further affidavits to be relied on by the Applicant as to the issue of penalty or other monetary orders sought shall be filed and served on or before 20 February 2009.
Any affidavits to be relied on by the respondent as to the issue of penalty or other monetary orders sought shall be filed and served on or before 27 February 2009.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 747 of 2007
| SHELBY MARTIN |
Applicant
And
| FRESHO FOODS PTY LTD ACN 120 091 296 |
Respondent
REASONS FOR JUDGMENT
The applicant, a senior workplace inspector at the Workplace Ombudsman, seeks orders pursuant to ss.719(1) and (6) Workplace Relations Act 1996 (“the Act”): first, for the imposition of a penalty against the respondent for breaches of an ‘applicable provision’ binding on it, relating to the underpayment of wages and overtime for its employees; and, secondly, for an order requiring the amounts of such underpayment to be paid to the specified employees. The applicant also seeks the imposition of a penalty under clause 31(2) of Schedule 9 to the Act.
The respondent did not contest that the applicant had standing under s.718 of the Act or clause 31(4) of Schedule 9 to the Act to seek the orders in the Amended Application.
The material relied upon by the applicant was:
a)Application filed 30 August 2007;
b)Amended Application filed 14 December 2007;
c)Further Amended Application filed by leave on 10 March 2008;
d)Affidavit of Shelby Mary Martin filed 30 August 2007;
e)Affidavit of Steven Leslie Williams filed 14 December 2007;
f)Affidavit of Shelby Mary Martin filed 17 December 2007;
g)Affidavit of Alison Kay Bold filed 12 February 2008;
h)Affidavit of Jamie Ross Odering filed 12 February 2008;
i)Affidavit of Melvyn Edward Bradford filed 12 February 2008;
j)Affidavit of Leanne Kym Dorricott filed 12 February 2008;
k)Affidavit of Caroline Therese O’Connor filed by leave on 10 March 2008.
The respondent filed no affidavit evidence. It was represented at the hearing by Mr Tony Pirrottina, who gave oral evidence and was cross examined. Mr Pirrottina also cross examined some of the applicant’s witnesses. An ASIC search exhibited to the affidavit of Leanne Kym Dorricott confirms that Mr Pirrottina is, and at all relevant times has been, a director of the respondent corporation which carries on the business of ‘Fresho Foods’.
The statutory scheme pursuant to which the applicant seeks relief is, to put it kindly, convoluted. Section 719(1) is deceptively simple. It provides:
(1) An eligible court may impose a penalty in accordance with this Division on a person if:
(a) the person is bound by an applicable provision; and
(b) the person breaches the provision.
There the simplicity ends. It is necessary to follow a labyrinthine path to determine each of the matters in s.719(1) of the Act.
To determine whether the respondent is bound by an applicable provision, it is necessary to go first to s.717 of the Act which defines that term, relevantly for this case as follows:
(a) a term of one of these that applies to the person:
(i) . . .
(ii) the Australian Fair Pay and Conditions Standard;
(iii) an award;
(iv) a collective agreement;
(v) . . .
To determine whether the Australian Fair Pay and Conditions Standard applies to the respondent, it is then necessary to go to Part 7 of the Act. Its purpose is set out in s.171 which provides:
(1) The purpose of this Part is to set out key minimum entitlements of employment.
(2) The key minimum entitlements relate to the following matters:
(a) basic rates of pay and casual loadings (see Division 2)
…
Section 172(1) and (2) of the Act provides:
(1) The Australian Fair Pay and Conditions Standard provides key minimum entitlements of employment for the employees to whom it applies.
(2) The Australian Fair Pay and Conditions Standard prevails over a workplace agreement or a contract of employment that operates in relation to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee.
Because this matter concerns the alleged underpayment of wages and overtime entitlements, it is then necessary to go to Division 2 of Part 7 of the Act. In s.178 an ‘APCS’ is defined to mean a preserved APCS or a new APCS, an acronym for Australian Pay and Classification Scale. The applicant alleges that a preserved APCS is binding on the respondent.
A ‘preserved APCS’ is defined to have the meaning given by s.208(1) of the Act. That section provides:
(1) If a pre-reform wage instrument contains rate provisions determining one or more basic periodic rates of pay, or basic piece rates of pay, payable to employees, then, from the reform commencement, there is taken to be a preserved APCS that includes (subject to this Subdivision):
a) those rate provisions; and
b) if those rate provisions determine different basic periodic rates of pay, or different basic piece rates of pay, for employees of different classifications – the provisions of the instrument that describe those classifications; and
c) any casual loading provisions of the instrument that determine casual loadings payable to employees, other than employees for whom the instrument provides basic piece rates of pay; and
d) if the casual loading provisions determine different casual loadings for employees of different classifications – the provisions of the instrument that describe those classifications; and
e) any provisions of the instrument that determine, in relation to employees to whom training arrangements apply, whether hours attending off-the-job training (including hours attending an educational institution) count as hours for which a basic periodic rate of pay is payable; and
f) any frequency of payment provisions for the instrument; and
g) the coverage provisions for the instrument.
The term ‘pre-reform wage instrument’ used in s.208(1) of the Act is defined in s.178 to mean, relevantly, a ‘pre-reform non-federal wage instrument’, also a defined term. It means:
pre-reform non-federal wage instrument means a pre-reform State wage instrument or a pre-reform Territory wage instrument.
In turn, ‘pre-reform State wage instrument’ is defined, relevantly to this application, to mean:
pre-reform State wage instrument means:
(a) a State award (as defined in subsection 4(1) of this Act) as in force immediately before the reform commencement: or
…
It is alleged in this case that the Jam, Preserve Fruit and Vegetable Processing Award - Southern Division, Eastern District (No. AR22 of 2002) which took effect from 23 December 2002 was a State award applicable to the respondent’s business.
Clause 1.3 of the Award provided:
“This Award shall apply to all employees and their employers engaged in the preparation, processing, preserving or manufacturing of jam, preserved fruit, fresh fruit, ginger, jellies, candied peel, preserved and fresh vegetables and shall include the deep freezing and/or cold storage of such products in any factory where such products are processed, except Superintendents at any factory, comprised within the following boundaries – That portion of the State along or east of a line commencing at the junction of the southern border of the State within 150 degrees of east longitude; then by that meridian of longitude due north to 25 degrees of south latitude; then by that parallel of latitude due west of 147 degrees of east longitude; then by that meridian of longitude due north to 22 degrees south latitude and thence by that parallel of latitude due east to the sea-coast.”
Clause 1.5 of the Award provided:
“This Award is legally binding upon the employees as prescribed by clause 1.3 and their employers, and the National Union of Workers Industrial Union of Employees Queensland and its members.”
The respondent’s admission of paragraph 2 of the applicant’s Notice to Admit Facts and Authenticity of Documents dated 19 February 2008 is sufficient for me to find that, if the business conducted by the respondent was that same as that conducted by the company from which it purchased the business ‘Fresho Foods’ prior to the reform commencement (27 March 2006), the Award was applicable to employees of that business conducted by its former owner.
For reasons that will follow when I come to discuss the Transmission of Business Rules, I conclude that the business now conducted by the respondent is the same as that conducted by the previous proprietor of “Fresho Foods”.
Therefore, the Award was in force immediately before 27 March 2006 for the business of Fresho Foods. The Award was therefore a pre-reform State wage instrument. The Award contains rate provisions as described in s.208(1) of the Act.
There is therefore taken to be a preserved APCS that includes the subject matters identified in s.208(1) of the Act. This is relevant to the claim for underpayment of wages, but not to the claim for non-payment of overtime because the latter matter is not comprehended by s.208(1) of the Act.
The Australian Fair Pay Commission has twice adjusted the APCS, as it is empowered to do by s.216(1) of the Act. The two pay scales effective from 1 December 2006 and 1 October 2007 applicable to the Award were admitted as exhibit 4.
Section 182(1) of the Act provides:
(1) If:
(a) the employment of an employee is covered by an APCS; and
b) the employee is not an APCS piece rate employee;
the employee must be paid a basic periodic rate of pay for each of the employee’s guaranteed hours (pro-rated for part hours) that is at least equal to the basic periodic rate of pay (the guaranteed basic periodic rate of pay) that is payable to the employee under the APCS.
The effect of this review of the statutory provisions enables me to conclude that, if they were properly described as employees, those persons engaged to work by the business ‘Fresho Foods’ prior to the reform commencement date (27 March 2006) were entitled to be paid the periodic rates of pay specified in the Award as adjusted by the Australian Fair Pay Commission.
The intricacies of the statutory scheme do not end there. Because the respondent purchased the business of Fresho Foods after the reform commencement date it is then necessary to go to Part 11 of the Act which prescribes what are described as Transmission of Business Rules. The object of the Part is set out in s.577 as follows:
The object of this Part is to provide for the transfer of employer obligations under certain instruments when the whole, or a part, of a person’s business is transmitted to another person.
The respondent has admitted paragraphs 3, 4 and 5 of the applicant’s Notice to Admit Facts and Authenticity of Documents dated 19 February 2008 which sought the admission of the following:
“3.In the period from on or about 14 July 2006 to on or about 22 September 2007, Fresho Foods Pty Ltd ACN 120 091 296 carried on a business called “Fresho Foods” at 29 Lemana Lane, Miami, Queensland.
4.Fresho Foods Pty Ltd ACN 120 091 296 purchased a business called “Fresho Foods” from T-Jays Wholesalers Pty Ltd ACN 107 382 767 in or around July 2006.
5.T-Jays Wholesalers Pty Ltd ACN 107 382 767 carried on a fruit and vegetable processing business called “Fresho Foods” at 29 Lemana Lane, Miami, Queensland prior to Fresho Foods Pty Ltd ACN 120 091 296 acquiring the business.”
Section 580 of the Act provides:
(1) The Part applies if a person (the new employer) becomes the successor, transmittee or assignee of the whole, or a part, of a business of another person (the old employer).
(2) The business, or the part of the business, to which the new employer is successor, transmittee or assignee is the business being transferred for the purposes of this Part.
(3) The time at which the new employer becomes the successor, transmittee or assignee of the business being transferred is the time of transmission for the purposes of this Part.
(4) The period of 12 months after the time of transmission is the transmission period for the purposes of this Part.
Section 598(1) of the Act provides:
(1) If:
(a)immediately before the time of transmission, an employee’s employment with the old employer was covered by an APCS; and
(b)the employee is a transferring employee in relation to the APCS; and
(c)but for this section, the transferring employee’s employment with the new employer would not be covered by the APCS;
the transferring employee’s employment with the new employer is covered by the APCS by force of this section.
I have found that employees of T-Jay’s Wholesalers Pty Ltd (the previous owner of Fresho Foods) at the reform commencement date were subject to an APCS. The respondent has admitted that the following persons were employed by T-Jay’s Wholesalers Pty Ltd before the respondent purchased that business:
(i) Salvatore (Sam) Sangricoli;
(ii) Mark Pearson;
(iii) Daniel Bennett;
(iv) Mel Smith;
(v) Melvyn (Mal) Bradford
(vi) Leanne Sangricoli;
(vii) Daniel Terry;
(viii) Alison Bold;
(ix) Nigel O’Brien;
(x) Julia Amos; and
(xi) Robert Grant
Section 581(1) of the Act provides:
(1) A person is a transferring employee for the purposes of this Part if:
(a)the person is employed by the old employer immediately before the time of transmission; and
(b) the person:
(i) ceases to be employed by the old employer; and
(ii) becomes employed by the new employer in the business being transferred;
within 2 months after the time of transmission.
As a consequence of the admission of paragraph 11(i) of the applicant’s Notice to Admit Facts and Authenticity of Documents, in addition to those persons specified at paragraph 28, James Odering is potentially covered as a transferring employee as he was engaged on or about 11 August 2006, within two months of the respondent’s acquisition of the business of ‘Fresho Foods’.
To determine whether the APCS applies to these identified persons it is necessary to determine:
a)Whether the respondent became the successor, transmittee or assignee of the whole , or a part, of a business of another person;
b)If so, whether the persons are employees of the respondent.
To support the submission that there had been a transmittal of the business of Fresho Foods, the applicant relied upon the joint judgment of Gleeson CJ and Gaudron McHugh and Gummow JJ in PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648 at [15]:
“As a general rule the question of whether a non-government employer who has taken over the commercial activities of another non-government employer has succeeded to the business or part of a business of that other employer, will require the identification or characterisation of the business or the relevant part of the business of the first employer as a first step. The second step is identification of the character of the transferred business activities in the hands of the new employer. The final step is to compare the two.”
The contract for the admitted purchase of the business was called for at the hearing, but not produced. The transfer of lease from T-Jays Wholesalers Pty Ltd to the respondent was put into evidence. The transfer was said to be pursuant to a business contract dated 26 June 2006.
A search of the business name Fresho Foods revealed a change in ownership from T-Jays Wholesale Foods Pty Ltd to the respondent on 14 July 2006. I find that the business was transferred on that date. The ‘transmission period’ is therefore 12 months from this date.
The work carried out by the business did not change after its acquisition by the respondent. Evidence was adduced by the applicant from two workers who were formerly employed by T-Jays Wholesale Foods Pty Ltd and subsequently worked for the respondent.
Melvyn Edward Bradford said at paragraph 8 of his affidavit:
“There was no apparent change in the work I performed when Tony took over the business. It was pretty much the same and I did the same work.”
Alison Kay Bold said at paragraph 22 of her affidavit:
“The tasks I performed at Fresho Foods both before and after the business was sold were more or less the same.”
At T43/40 Mr Pirrottina accepted that the business that was Fresho Foods was very much the same business after he took it over in terms of what the business actually did. He also accepted that in terms of the work that was performed the workers did pretty much the same work in the business before and after the respondent took it over.
I find that there was the transmission of the business of Fresho Foods from T-Jays Wholesale Foods Pty Ltd to the respondent.
Subsections 5(1) and (2) of the Act provide:
(1) In this Act, unless the contrary intention appears:
employee means an individual so far as he or she is employed, or usually employed, as described in the definition of employer in subsection 6(1), by an employer, except on a vocational placement.
(2) However, a reference to employee has its ordinary meaning (subject to subsections (3) and (4)) if the reference is listed in clause 2 of Schedule 2. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).
What is ordinarily understood by the term employee is the subject of much judicial authority. It is sufficient to refer to three decisions.
In Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 24 Mason J (with whom Brennan J agreed) said;
“A prominent factor in determining the nature of the relationship between a person who engages another to preform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it: Zuijs v. Wirth Bros. Pty. Ltd. (30); Federal Commissioner of Taxation v. Barrett (31); Humberstone v. Northern Timber Mills (32). In the last-mentioned case Dixon J. said:
“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.”
But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty. Ltd. V. Federal Commissioner of Taxation (33); Zuijs’ Case; Federal Commissioner of Taxation v. Barrett (34); Marshall v. Whittaker’s Building Supply Co. (35). Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”
Wilson and Dawson JJ said at 35 - 37 :
“The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending upon whether the engagement subjects the person engaged to the command of the person engaging him, not only as to what he shall do in the course of his employment but as to how he shall do it: Performing Right Society Ltd. V. Mitchell and Booker (Palais de Danse) Ltd. (70). The modern approach is, however, to have regard to a variety if criteria. This approach is not without its difficulties because not all of the accepted criteria provide a relevant test in all circumstances and none is conclusive. Moreover, the relationship itself remains largely undefined as a legal concept except in terms of the various criteria, the relevance of which may vary according to the circumstances. Thus when Windeyer J. in Marshall v. Whittaker’s Building Supply Co. (71) said that the distinction between a servant and an independent contractor “is rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own”, he was really posing the ultimate question in a different way rather than offering a definition which could be applied for the purpose of providing an answer. So too when Denning L.J. in Bank Voor Handel en Scheepvaart N.V. v. Slatford (72) observed that the test of being a servant does not rest nowadays on submission to orders but “depends on whether the person is part and parcel of the organisation”. As a restatement of the problem, this observation may place a different emphasis upon the tests to be applied but of itself offers no new test for the solution of the problem, although a submission to the contrary was made on behalf of Stevens in this case: see also Stevenson Jordan and Harrison Ltd. V. MacDonald and Evans (73), per Denning L.J.; Ready Mixed Concrete (South East) Ltd. V. Minister of Pensions and National Insurance (74), per MacKenna J. We would be doing no more ourselves if we were to suggest that the question is whether the degree of independence overall is sufficient to establish that a person is working on his own behalf rather than acting as the servant of another, but putting it that way does at least indicate that the question is one of degree for which there is no exclusive measure.
In many, if not most, cases it is still appropriate to apply the control test in the first instance because it remains the surest guide to whether a person is contacting independently or serving as an employee. That is not now a sufficient or even an appropriate test in its traditional form in all cases because in modern conditions a person may exercise personal skills so as to prevent control over the manner of doing his work and yet nevertheless be a servant: Montreal v. Montreal Locomotive Works (75). This has led to the observation that it is the right to control rather than its actual exercise which is the important thing (Zuijs v. Wirth Bros. Pty. Ltd. (76)) but in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd. V. Federal Commissioner of Taxation (77), a case involving a droving contract in which Dixon J. observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.
The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.
Having said that, we should point out that any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance.”
In Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [39] – [40] in the joint majority judgment it was said:
“In Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia (75), Dixon J explained the dichotomy between the relationships of employer and employee, and principal and independent contractor, in a passage which has frequently been referred to in this Court (76). His Honour explained that, in the case of an independent contractor (77):
“[t]he work, although done at [the principal’s] request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative by as a principal.”
This statement merits close attention. It indicates that employees and independent contractors perform work for the benefit of their employers and principals respectively. Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee. However, Dixon J fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor. These notions later were expressed positively by Windeyer J in Marshall v Whittaker’s Building Supply Co (78). His Honour said that the distinction between an employee and an independent contractor is “rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carried on a trade or business of his own”.”
At [48] – [57] their Honours identified seven matters that led to the conclusion that the bicycle couriers in that case were employees and not independent contractors:
a)The couriers were not providing skilled labour or labour which required special qualifications;
b)The couriers had little control over the manner of performing their work;
c)The couriers were presented to the public and to those using the courier service as emanations of the company that engaged them;
d)The matter of deterrence;
e)The company that engaged them supervised the couriers’ finances;
f)The situation in respect of tools and equipment;
g)The company retained control of the allocation and direction of the various deliveries.
Counsel for the applicant helpfully referred me to the decision of the Workers’ Compensation Tribunal of South Australia that considered whether a worker engaged as casual tomato picker was an employee, although purportedly engaged as a contractor through a labour hire company: Country Metropolitan Agency Contracting Services Pty Ltd v Slater (2003) 124 IR 293. This case contains a useful digest of the relevant authorities.
I have little difficulty concluding that each of the named persons at paragraph 28, and Mr Odering, were ‘transferring employees’. They were each employees as that term is ordinarily understood.
The respondent admitted paragraphs 14 and 15 of the applicant’s Notice to Admit Facts and Authenticity of Documents, which sought the admission of the following:
“14.Each worker, with the exception of Jamie Odering, engaged by Fresho Foods Pty Ltd ACN 120 091 296 to work at 29 Lemana Lane, Miami, at all times:
(i)preformed routine duties associated with the manufacturing process predominately peeling, chopping, slicing and preparing fruit and vegetables;
(ii)undertook cleaning duties associated with the manufacturing process;
(iii)was told by a supervisor what days they were to work;
(iv)was directed by a supervisor when to start and finish work;
(v)exercised minimal judgement;
(vi)were told by a supervisor what tasks they were required to perform on a daily basis;
(vii)worked under direct supervision to complete their tasks which included:
(a) house keeping duties;
(b) assisting machine operators;
(c) using selected hand tools for example vegetable peelers;
(d) maintaining simple records such as time books to record hours worked; and
(e) learning processing skills.
15.On or around 29 December 2006 to on or around 30 July 2007, Jamie Odering:
(i)co-ordinated the work performed at 29 Lemana Lane, Miami, Queensland in a team environment under limited supervision;
(ii)directed other workers to perform specific tasks associate with the manufacturing process;
(iii)was responsible for the quality of the work performed at 29 Lemana Lane, Miami, Queensland;
(iv)supervised teams of other workers;
(v)operated mobile equipment including forklifts;
(vi)was responsible for ensuring the customer orders were despatched on the delivery truck to be delivered to the customers; and
(vii)performed tasks associated with the manufacturing process, namely peeling, chopping, slicing and preparing fruit and vegetables.”
Mr Pirrottina was at pains to point out when cross examining his workers, and when interviewed by the applicant and others, that he made it clear to the workers that the basis on which they would be engaged was as an independent contractor, and that they would have to supply their own ABN. He stressed that he did not mislead any of the persons who subsequently worked for the business. Putting to one side the failure to provide a statutory notice to the workers, which I will deal with in due course, so much can be accepted. However, the mere fact that a person is described as an independent contractor does not mean that the person is an independent contractor. The nature of the relationship between the worker and the person who engages them must be examined.
At T 40 Mr Pirrottina gave the following evidence:
“Not ever having a business of this type before with workers and factories, I was – went to my accountant and I said, look I’m thinking about buying this business. I’ve had a look at it, there’s workers there, and the business is running at a loss, which reflected on the price I paid for it. I think – I believe that I could turn it around, it was a new challenge for me. But now there was workers there that – you know, 10 workers or something like that, and you know, they’re getting paid this way now, I said, but I’d prefer to put them on as contractors, I think we’ll get more out of them and they can earn – and they’ll be able – they’ll also be able to earn more money. And I said, I’m thinking about starting them at about – starting them at about 15 bucks. And he said, yes that’s okay . . .”
At T44/5 Mr Pirrottina accepted that the workers would do the work they were instructed to do in the course of the day, they were paid at a set rate per hour (T44/2) and they might rotate through the various tasks to be performed (T44/15). At T45/5 Mr Pirrottina virtually admitted the applicant’s contention that the workers were employees when he said that the workers “were employed to work whatever hours they were told to work for a certain amount of money”.
In this case, the workers worked at the respondent’s premises, under the respondent’s control. They were told what tasks they had to perform, and were supervised when doing so. They produced product on behalf of the respondent that was identified as the respondent’s product and not that of any individual workers. Although there was undoubtedly some skill required to peel and chop vegetables and fruit and prepare it for packaging, the tasks performed by the workers could not be described as requiring special skills. The workers were paid a flat hourly rate, and were not remunerated according to the quantity of product produced. They were required to record their hours in the respondent’s books and were required to work on the days and for the hours directed by the respondent.
At paragraph 16 of his affidavit Mr Odering said:
“I supervised staff quite closely. I would tell them what tasks they needed to do and rotate them from one task to another. I would also check that they were doing their job properly and train them if they needed help.”
Although some workers provided their own tools, in the nature of peelers and knives, such implements were provided by the respondent if required. The respondent provided the machinery used in some parts of the process. The respondent provided each worker with an apron to wear.
Although it was contended by the respondent that a worker could delegate his or her work to another person, Mr Pirrottina could only give one example of where that had occurred, and accepted that the substitute worker would have had to be acceptable to him.
I accept the evidence of those workers called as witnesses by the applicant, which was not challenged by the respondent, that invoices were not provided by the workers to the respondent. Mr Pirrottina considered that a worker signing the wage book with a record of hours worked constituted an invoice. I disagree. Exhibited to Ms Dorricott’s affidavit is a document described as a payslip for an employee. It is inimical to the contention that workers were engaged as independent contractors.
I find that each of the persons identified in the Amended Application and the Further Amended Application were employees within the ordinary meaning of that term.
I find that those persons set out at paragraph 28 above, and Mr Odering, were ‘transferring employees’.
Accordingly, the employment of those employees set out at paragraph 28 above, and Mr Odering, was covered by the APCS, which in turn picked up the Award.
The position thus determined is tolerably clear for the transferring employees. However, employees additional to those transferring employees are the subject of the application.
It seems to be the applicant’s case that persons employed by the respondent after the transmission date (and the two month statutory extension period) are also entitled to the benefit of the ACPS. This is said to derive from s.204(1) of the Act which provides:
(1) The question whether the employment of a particular employee is covered by a particular APCS is to be determined by reference to the coverage provisions of the APCS.
It is submitted (see, for example at T8-9) that because the Award is generally applicable to all of the respondent’s employees by its coverage provisions, if the Award continued to operate in respect of the respondent’s business, so the employment of all employees is covered by the ACPS.
It was also submitted (T8) that s.598(1) of the Act applies the APCS to all employees, whether transferring employees or those subsequently employed. In my opinion it does not. The subsection specifically is limited to transferring employees.
The effect of the statutory provisions to which I have made reference is to impose on a corporation that purchases a business after 27 March 2006 an obligation to preserve the entitlements of transferring employees. That is, if the transferring employees were entitled to benefits under an Award before the reform commencement date, they continued to remain entitled after that date, if the business remained in the same ownership; and, if the business changed hands, remained entitled to the same benefits for the period of time stipulated by the Act from their new employer.
However, the Act does not, in my opinion, extend that protection to employees engaged by the employer after the acquisition of the business.
Therefore, I conclude that the APCS applies only to transferring employees consequent upon the respondent’s purchase of the business.
As I stated earlier the APCS provides an avenue for establishing an entitlement in the transferring employees to certain rates of pay. There is also a claim for the non-payment of overtime. In this regard it is necessary to have regard to another acronym created by the Act – a Notional Agreement Preserving a State Award (NAPSA).
Here, it is necessary to go to Schedule 8 of the Act. Clause 2 of the Schedule sets out the objects of the Schedule as follows:
The objects if this Schedule are:
(a)to preserve for a time the terms and conditions of employment, as they were immediately before the reform commencement, for those employees:
(i) who, but for the reforms commenced at that time, would be bound by a State employment agreement, a State award or a State or Territory industrial law; or
(ii) whose employment, but for the reforms commenced at that time, would be subject to a State employment agreement, a State award or a State or Territory industrial law; and
(b)to encourage employees and employers for whom those terms and conditions have been preserved to enter into workplace agreements during that time.
Clause 1 of the Schedule defines ‘notional agreement preserving State awards’ as follows:
notional agreement preserving State awards is an agreement that is taken to come into operation under clause 31.
Clause 31 of the Schedule provides:
If, immediately before the reform commencement, the terms and conditions of employment of one or more employees in a single business or a part of a single business:
(a)were not determined under a State employment agreement; and
(b)were determined, in whole or in part, under a State award (the original State award) or a State or Territory industrial law (the original State law);
a notional agreement preserving State awards is taken to come into operation on the reform commencement in respect of the business or that part of the business.
Therefore a NAPSA came into existence in respect of the business ‘Fresho Foods’ on 27 March 2006.
Clause 32 of the Schedule provides:
(1) Any person who:
(a)immediately before the reform commencement, was bound by, or a party to, the original State award or original State law; and
(b)is one of the following:
(i) an employer in the business, or that part of the business;
(ii) an employee who is employed in the business, or that part of the business, who was so employed immediately before the reform commencement, who was not bound by, or a party to, a State employment agreement at that time and whose employment was not subject to such an agreement at that time;
(iii) an organisation that has at least one member who is such an employee, and that is entitled to represent the industrial interests of at least one such employee;
is bound by the notional agreement.
(2) If:
(a)a person is employed in the business or that part of the business after the reform commencement; and
(b)under the terms of the original State award or the original State law, as in force immediately before the reform commencement, the person would have been bound by that award or law; and
(c)the person is not bound by a preserved State agreement;
the person is bound by the notional agreement.
Clause 33 of Schedule 8 provides:
(1) The employment of a person in the business or that part of the business is subject to the notional agreement, if:
(a)that employment was, immediately before the reform commencement, subject to the original State award or the original State law; and
(b)that employment was not subject to a State employment agreement at that time.
(2) If:
(a)a person is employed in the business, or that part of the business, after the reform commission; and
(b)under the terms of the original State award or the original State law, that employment would have been subject to that award or that law; and
(c)that employment is not subject to a preserved State agreement;
that employment is subject to the notional agreement.
T-Jays Wholesale Foods Pty Ltd and its employees were bound by the Award until 27 March 2006. But for the reform those employees and any future employees of the business would thereafter have been covered by the Award. For reasons that I have already given, there was a transmission of the business from T-Jays Wholesale Foods Pty Ltd to the respondent on 14 July 2006. The respondent and the transferring employees thereupon became bound by the Award. Additional employees engaged by T-Jays Wholesale Foods Pty Ltd after 27 March 2006, and before the business was transmitted to the respondent were also bound by the Award, pursuant to Clause 32(2) of Schedule 8 to the Act. Therefore, those persons employed by that company between the reform commencement date and the date of sale of the business would also be entitled to the benefit of the award conditions.
By clause 34 of the Schedule:
(1) If, immediately before the reform commencement, a term of the original State award would have determined, in whole or in part, a term or condition of employment in the business or that part of the business of a person who was not bound by or a party to a State employment agreement, or whose employment was not subject to such an agreement, then to that extent, that term, as in force at that time, is taken to be a term of the notional agreement.
(2) If, immediately before the reform commencement, a provision of a State or Territory industrial law would have determined, in whole or in part, a preserved entitlement of a person employed in the business or that part of the business who was not bound by or a party to a State employment agreement, or whose employment was not subject to such an agreement, then to that extent, that provision, as in force at that time, is taken to be a term of the notional agreement.
(3) In this clause:
preserved entitlement means:
(a) an entitlement to:
(i) annual leave and annual leave loadings; or
(ii) parental leave, including maternity leave and adoption leave; and
(iii) personal/carer’s leave; or
(iv) leave relating to bereavement; or
(v) ceremonial leave; or
(vi) notice of termination; or
(vii) redundancy pay; or
(viii) loadings for working overtime or shift work; or
(ix) penalty rates, including the rate of payment for work on a public holiday; or
(x) rest breaks; or
(b) another prescribed entitlement.
I will deal with the terms of the Award shortly, but I find that it satisfied the requirements of Clause 34(1) of Schedule 8.
Clause 43 of Schedule 8 provides:
(1) A notional agreement preserving State awards may be enforced as if it were a collective agreement.
(2) A workplace inspector has the same functions and powers in relation to a notional agreement preserving State awards as he or she has in relation to a collective agreement.
It will be recalled that in s.717 in the definition of ‘applicable provision’ reference was made to a collective agreement.
Had there not been a transfer of the business to the respondent the effect of these provisions is that the Award would apply to employees of the business engaged both before and after the reform commencement date of 27 March 2006.
However, the position is different where there was a transmission of the business after the reform commencement date. Schedule 9 deals with the Transmission of Business Rules. Its object is set out in clause 1:
The object of this Schedule is to provide for the transfer of employer obligations under certain transitional instruments when the whole, or a part, of a person’s business is transmitted to another person.
A ‘State transitional instrument’ is defined in clause 3 of Schedule 9 to mean, relevantly, a NAPSA.
Clause 4 of Schedule 9 provides:
(1) This Schedule applies if a person (the new employer) becomes the successor, transmittee or assignee of the whole, or a part, of a business of another person (the old employer).
(2) The business, or the part of the business, to which the new employer is successor, transmittee or assignee is the business being transferred for the purposes of this Schedule.
(3) The time at which the new employer becomes the successor, transmittee or assignee of the business being transferred is the time of transmission for the purposes of this Schedule.
(4) The period of 12 months after the time of transmission is the transmission period for the purposes of this Schedule.
For the reasons already given at paragraphs 31 to 39 above I find that the respondent became the transmittee of the business of Fresho Foods. I find that those persons set out at paragraph 28 above, and Mr Odering, were transferring employees as dealt with by clause 5 of Schedule 9.
Clause 19(1) of Schedule 9 provides:
(1) If:
(a) immediately before the time of transmission:
(i) the old employer; and
(ii) employees of the old employer;
were bound by a State transitional instrument; and
(b)there is at least one transferring employee in relation to the State transitional instrument; and
(c)but for this clause, the new employer would not be bound by the State transitional instrument in relation to the transferring employees;
the new employer is bound by the State transitional instrument by force of this clause.
However, clause 19(4) provides:
(4) The new employer is bound by the State transitional instrument by force of this clause only in relation to the employment of employees who are transferring employees in relation to the State transitional instrument.
It seems, because Schedule 9 specifically deals with the matter, that the NAPSA preserving the Award applies to the respondent upon the transfer of the business to it, but only in respect of transferring employees.
It is then necessary to turn to the Award to see what rates of pay and overtime entitlements were available to those transferring employees, and then to determine what they were actually paid, to see if there has been an underpayment.
Clause 4.1.1 of the Award recognises three categories of employment. Notwithstanding the definition of ‘casual hand’ in clause 1.6 of the Award (which might be thought to describe the employees of the respondent), that term does not appear subsequently and appears to have been included by oversight, perhaps as a result of the use as a precedent of an earlier incarnation of the Award.
Having regard to the evidence of those employees called by the applicant, and having regard to the respondent’s employment records, the authenticity of which has been accepted by the respondent, I conclude that workers engaged by the respondent were not part time employees as dealt with in clause 4.2 of the Award, primarily because they were not rostered to work regular hours on regular days. Work was offered on a needs (of the respondent) basis.
Clause 4.3 of the Award deals with casual employment. It provides:
“4.3.1A casual may be employed on any day for a period of eight hours at the rate specified herein plus the addition of 23%. All time worked in excess of eight hours on any one day shall be considered overtime and shall be paid for at the rate of Time and a-Half for the first three hours and Double Time thereafter.
4.3.2Work performed (up to a period not exceeding eight hours) on Saturday and Sunday shall not be regarded as overtime for casual employees unless and until the casual employee had been required to work tow or more days in any week, Monday to Friday.
4.3.3When any casual employee has worked on any two days during the week Monday to Friday, such employee shall be paid in respect of Saturday a the rate of Time and a-Half for the first three hours and Double Time thereafter, and in respect to Sundays at the rate of Double Time.
I accept the submission of counsel for the applicant that clause 4.3.1 of the Award should be read as if the words “up to” were inserted before the word “eight” in the first line. That is a worker would still be a casual if they worked less than eight hours in a day.
Thus, those transferring employees employed by the respondent were entitled to be paid a loading on top of their prescribed rates of pay of 23%, and to the extent that they worked more than eight hours on any day, and in certain circumstances on a Saturday or Sunday, they were entitled to be paid at overtime rates.
The applicant also submits that if the employees were required to work before 6 am they were also entitled to be paid at overtime rates for the time worked before 6 am.
Mr Pirrottina accepted that the workers often commenced work in the early hours of the morning. This is reflected in the time sheets kept as part of the respondent’s business.
The entitlement to overtime rates for these early starts is said to derive from clause 6.1.3 of the Award which provides:
“6.1.3The ordinary hours of work prescribed in clause 6.1 shall be worked continuously, except for meal breaks and rest pauses, between 6.00 a.m. and 6.00 p.m. The spread of hours prescribed in clause 6.1 may be altered as to all or a section of employees provided there is agreement between the employer and the majority of employees concerned:
Provided further that work done outside the hours of 6.00 a.m. to 6.00 p.m. shall be paid at overtime rates and will be deemed to be part of the ordinary hours of work for the purposes of this subclause.”
The time span specified only applies to the ‘ordinary hours of work prescribed in clause 6.1’. Clause 6.1.1 and 6.1.2 of the Award provide:
“6.1.1Subject to clause 6.2 (Implementation of 38 hour week), and subject to the exceptions hereinafter provided, the ordinary hours of work shall be an average of 38 per week, to be worked on one of the following bases:
(a)38 hours within a work cycle not exceeding seven consecutive days; or
(b)76 hours within a work cycle not exceeding fourteen consecutive days; or
(c)114 hours within a work cycle not exceeding twenty-one consecutive days; or
(d)152 hours within a work cycle not exceeding twenty-eight consecutive days.
6.1.2The ordinary hours of work prescribed may be worked on any five consecutive days in the week, Monday to Saturday inclusive, subject to the following:
(a)ordinary hours worked on a Saturday shall be paid at the appropriate weekend overtime rate specified in clause 6.5 (Overtime and Sunday work).
(b)any arrangement of hours which includes a Saturday as ordinary hours shall be subject to agreement between the employer and the majority of employees concerned.”
In my view, when regard is had to these two subclauses, they are not applicable to casual employees. By their nature casual employees do not have ordinary hours of work, and would not necessarily work an average of 38 hours a week. They may work much less, or indeed much more. Casual employees would not necessarily work on five consecutive days as contemplated by clause 6.1.2 of the Award.
In my view clause 6.1.3 is inapplicable to casual employees. That view is reinforced by the language of clause 4.3 itself which specifically addresses the circumstances in which casual employees are to be paid overtime. If it was intended that any casual work performed outside the hours of 6 am to 6 pm attract overtime rates, one would expect that to be specified in clause 4.3 of the Award.
I therefore conclude that the transferring employees were casual employees, entitled to a loading of 23% on their rates of pay, and to overtime if they otherwise satisfied clause 4.3 of the Award.
The respondent has admitted that he paid his employees a flat rate of remuneration and did not pay overtime.
I accept that those transferring employees, other than Mr Odering, were properly classified as a manufacturing/production worker level 1 as set out at clause 5.1.1 of the Award.
I accept that Mr Odering was properly classified as a manufacturing/production worker level 4 as set out at clause 5.1.4 of the Award.
The rates of wages payable to the transferring employees are set out at clause 5.2 of the Award and were adjusted by the Australian Fair Pay Commission as set out in exhibit 4.
Caroline O’Connor in her affidavit has helpfully prepared a number of schedules setting out from the respondent’s own documents, and by applying the relevant award rates of pay, what the employees of the respondent were paid, and what the applicant contends they should have been paid.
For the reasons I have already given, the applicant can only succeed in respect of the identified transferring employees. At paragraph 12 of her affidavit Ms O’Connor has correctly identified these employees. Because he was engaged within the two month window permitted by the legislation, Mr Odering should be included in this group.
The process that Ms O’Connor adopted in her preparation of the schedules for the transferring workers is set out at paragraphs 17 to 19 of her affidavit.
Ms O’Connor says, at paragraph 24 of her affidavit:
“If a Transferring Worker was paid at an hourly rate above the hourly rate provided for in the NAPSA Documentation for a particular week, I manually entered 0 in the column relating to underpayments, accordingly I did not offset any overpayments against the underpayments.”
In my view, the respondent is entitled to offset overpayments against underpayments before it can be fairly concluded that it has in fact underpaid a particular employee.
Further calculations obviously need to be undertaken to accurately state the amount of the underpayment in respect of each transferring employee. It would be easier if Ms O’Connor did those calculations. The re-calculations should be undertaken with the following guidelines:
a)Each of the transferring employees that I have identified (including Mr Odering) were entitled to be paid at the Award rate with a loading of 23% for the hours that they worked;
b)Overtime entitlements should be calculated solely by reference to clause 4.3 of the Award and no adjustment should be made for hours worked before 6 am;
c)Overpayments should be set off against underpayments in the final figure arrived at.
A schedule can then be produced to reflect the amount, if any, of any underpayment of wages, or non-payment of overtime.
I consider the best course to follow at the present time is to find that, in so far as there has been an underpayment of wages or non-payment of overtime to a transferring employee, there has been a breach of an applicable provision in terms of s.719(1) of the Act. I am satisfied that, having regard to the work done by Ms O’Connor to date, that there have been occasions of underpayment of wages and non-payment of overtime, but the exact amounts involved cannot be ascertained until further calculations are performed.
Section 719(2) of the Act provides:
(2) Subject to subsection (3), where:
(a)2 or more breaches of an applicable provision are committed by the same person; and
(b)the breaches arose out of a course of conduct by the person;
the breaches shall, for the purposes of this section, be taken to constitute a single breach of the term.
Section 719(3) is not said to be applicable in this case.
In my view there have been two breaches of an applicable provision by the respondent: the first relating to the underpayment of wages to transferring employees; and the second relating to the non payment of overtime. I consider that the breaches in respect of all transferring employees arose out of a course of conduct by Mr Pirrottina on behalf of the respondent. Mr Pirrottina made it clear to the transferring employees, including at a meeting, that he would only engage them on certain terms, under the mistaken belief that they would then be independent contractors, and that he would pay a flat rate of remuneration. Similarly, it was the respondent’s practice not to pay overtime. In the case of each breach there was a course of conduct.
As suggested by counsel for the applicant, having determined that there were the breaches identified, the matter should be adjourned for a penalty hearing so that:
a)The re-calculations to which I have referred can be performed;
b)The respondent can, if it wishes, put on evidence as to penalty;
c)The applicant and the respondent can each address the court as to the appropriate penalty.
The final matter with which I have to deal relates to the alleged breach of clause 28 of Schedule 9 to the Act. It provides:
(1) This clause applies if:
(a)an employer is bound by a transitional instrument (the transmitted instrument) in relation to a transferring employee by force of:
(i) clause 7 (pre‑reform AWA); or
(ii) subclause 10(1), (2) or (3) (pre‑reform certified agreement); or
(iii) clause 19 (State transitional instrument); and
(b)a person is a transferring employee in relation to the transmitted instrument.
The provision referred to in paragraph (a) is the transmission provision.
(2) Within 28 days after the transferring employee starts being employed by the employer, the employer must take reasonable steps to give the transferring employee a written notice that complies with subclause (3).
(3) The notice must:
(a) identify the transmitted instrument; and
(b)state that the employer is bound by the transmitted instrument; and
(c)specify the date on which the transmission period for the transmitted instrument ends; and
(d)state that the employer will remain bound by the transmitted instrument until the end of the transmission period unless the transmitted instrument is terminated, or otherwise ceases to be in operation, before the end of that period; and
(e)specify the kinds of instruments (if any) that can replace, or exclude the operation of, the transmitted instrument; and
(f) identify:
(i) any provisions of the Australian Fair Pay and Conditions Standard; or
(ii) any other instrument;
that the employer intends to be the source for terms and conditions that will apply to the matters that are dealt with by the transmitted instrument when the transmitted instrument ceases to bind the employer; and
(g) identify any award or collective agreement that binds:
(i) the employer; and
(ii) employees of the employer who are not transferring employees in relation to the transmitted instrument;
and that would bind the transferring employee but for the transmission provision.
(3A) Subject to subclause (3B), if the notice under subclause (3) identifies an instrument under paragraph (3)(g), the employer must give the transferring employee a copy of the instrument together with the notice.
(3B) Subclause (3A) does not apply if:
(a)the transferring employee is able to easily access a copy of the instrument in a particular way; and
(b)the notice under subclause (3) tells the transferring employee that a copy of the instrument is accessible in that way.
(4) Subclause (2) does not apply if:
(a)the transmitted instrument is a pre‑reform AWA and the new employer and the transferring employee become bound by an AWA within 14 days after the time of transmission; or
(b)the transmitted instrument is not a pre‑reform AWA and the new employer and the transferring employee become bound by an AWA or a collective agreement at the time of transmission or within 14 days after the time of transmission.
The clause applies because the respondent is bound by the State transitional instrument.
The respondent did not admit that the requisite notice was not given, despite being requested to do so. Two transferring employees, Melvyn Edward Bradford, and Alison Kay Bold gave evidence that they were not given any notice by the respondent. The applicant asks that I infer that notice was not given to any transferring employee.
I am prepared to draw that inference for four reasons:
a)There is no identified reason why notice would be given to some transferring employees and not the two that I have identified;
b)The two employees gave evidence and were cross examined. They were not challenged about their statements that no notice was given to them;
c)The respondent’s case was that the transferring employees were independent contractors, and therefore there was no need for it to give the notices;
d)The respondent made disclosure, and gave evidence and did not contend that a notice had been given.
I find that the respondent failed to give notice to each of the transferring employees that complied with clause 28(3) of Schedule 9 to the Act.
So that all matters of penalty are dealt with at the same time, I will also adjourn consideration of the penalty to be imposed for the breaches of clause 28(2) for further hearing.
There will be orders as set out at the commencement of these reasons.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 27 January 2009
2