McMahon v Wilson Curry Pty Ltd
[2013] FCCA 1743
•30 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCMAHON v WILSON CURRY PTY LTD | [2013] FCCA 1743 |
| Catchwords: INDUSTRIAL LAW – Application for joinder – consideration of the true employer – consideration of ‘sham’ employment arrangements – consideration of circumstances where a Court or Tribunal may lift the corporate veil – application dismissed. |
| Legislation: Fair Work Act 2009, ss.351(1), 365, 550 Federal Circuit Court Rules 2001 (Cth), Rule 7.03 |
| Arcadia v Accenture Australian – Melbourne (2008) 170 IR 288 Re Sharrment Pty Limited and Ors v the Official Trustee in Bankruptcy [1988] FCA 179 |
| Applicant: | IAN MCMAHON |
| Respondent: | WILSON CURRY PTY LTD |
| File Number: | MLG 1399 of 2012 |
| Judgment of: | Judge Whelan |
| Hearing date: | 11 October 2013 |
| Date of Last Submission: | 11 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr McKenny |
| Solicitors for the Applicant: | Faram Ritchie Davies |
| Counsel for the Respondent: | Mr D'Abaco |
| Solicitors for the Respondent: | Macpherson + Kelley Lawyers |
ORDERS
The Application in a Case filed by the Applicant on 17 September 2013 for joinder of:
(a)A&M Green Investments Pty Ltd ACN 123 073 718
(b)S&K Green Investments Pty Ltd ACN 122 778 063
(c)GreenGroup Property Investments Pty Ltd ACN 132 608 149
(d)GreenGroup Property Holdings Pty Ltd ACN 122 564 694
(e)Kensington Gardens Lifestyle Estates ABN 72 527 097 232
(f)A&M Investment Pty Ltd ACN 009 976 470
(g)Glendette Pty Ltd ACN 010 798 268
(h)Eastcoast Management Services Pty Ltd ACN 009 845 167
as Respondents is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1399 of 2012
| IAN MCMAHON |
Applicant
And
| WILSON CURRY PTY LTD |
Respondent
REASONS FOR JUDGMENT
Background
On 1 November 2012, the Applicant Mr IAN MCMAHON (“the Applicant”) lodged a claim in this Court that his employer, then named as KENSINGTON MANAGEMENT SERVICES PTY LTD (“KMS Pty Ltd”), had terminated his employment in circumstances which constituted a breach of s.351(1) of the Fair Work Act 2009 (Cth) (“the Act”). In proceedings on 3 May 2013, the name of KMS Pty Ltd was changed to WILSON CURRY PTY LTD (“WC Pty Ltd”).
On 17 September 2013, the Applicant, by way of an Application in a Case, sought to join the following entities:
·A&M Green Investments Pty Ltd ACN 123 073 718
·S&K Green Investments Pty Ltd ACN 122 778 063
·GreenGroup Property Investments Pty Ltd ACN 132 608 149
·GreenGroup Property Holdings Pty Ltd ACN 122 564 694
·Kensington Gardens Lifestyle Estates ABN 72 527 097 232
·A&M Investment Pty Ltd ACN 009 976 470
·Glendette Pty Ltd ACN 010 798 268
·Eastcoast Management Services Pty Ltd ACN 009 845 167
(collectively “the Green Group”) as Respondents to the proceedings.[1] The Application is opposed by all of the entities sought to be joined. An affidavit in support of the application was filed by the Applicant[2] and an affidavit opposing the Application was lodged by the Director of the Respondent, Mr SHAUN GREEN (“Mr Green”).[3]
[1] Application in a Case filed 17 September 2013 at p.2.
[2] Affidavit sworn by Ian McMahon on 16 September 2013.
[3] Affidavit affirmed by Shane Green on 11 October 2013.
The Applicant’s submissions
The Applicant submitted that the Green Group had common directors and registered places of business. The Applicant gave evidence of his dealings with Mr Green during the period of his employment. During that time, Mr Green described himself as Director of the Green Group.[4]
[4] Affidavit sworn by Ian McMahon on 16 September 2013 at para.12.
During the course of the Applicant’s and his wife Ms DIANNE MCMAHON’s (“Ms McMahon”) employment, they made complaints about the underpayment of wages. An offer of settlement of their claim was made by a Mr COL WARD (“Mr Ward”), on the letterhead of Choice Retirement Communities.[5] The Applicant understands Mr Ward to be the Regional Manager of the retirement villages and an employee of A&M Investments Pty Ltd. A letter confirming the appointment of the Applicant and Ms McMahon as caretakers after the completion of their probationary period is signed by “Shaun Green, Director, Green Group of Companies”.[6] The Applicant and Ms McMahon also corresponded with a Mr PETER LOLLO (“Mr Lollo”) about their employment.[7] Mr Lollo is a director of a number of the companies of the Green Group.
[5] Affidavit sworn by Ian McMahon on 16 September 2013, Annexure IM13.
[6] Ibid at Annexure IM14.
[7] Ibid at Annexure IM15.
Further, the property on which the Applicant’s former workplace Kensington Gardens operates is owned by A&M Green Investments and S&K Green Investments Pty Ltd. The Respondent was put into voluntary administration on 22 February 2013. A Deed of Company Arrangements was entered into on 6 March 2013. On 17 April 2013, the Respondent was released from administration and is back in the control of the directors. It however no longer has any assets or employees.
The Applicant submits that there is a question about who is the employer. The Applicant did not deal exclusively with KMS Pty Ltd. The Applicant referred to paragraphs [52] to [64] of the judgment of Edmonds J in Gothard, in the matter of AFG Pty Limited (Receivers and Managers appointed) (in liq) v Davey [2010] FCA 1163 (“Gothard”). In particular, the Applicant relied on the matters set out in paragraph [60] of Gothard and submitted:
·Mr Green had practical and legal control and direction of the employees and made decisions about hiring and issues such as probation as director of the Green Group of Companies;
·Mr Ward made decisions about remuneration matters; and
·Mr Green, on the Green Group of Companies letterhead, wrote the letter of termination.[8]
[8] Affidavit of Mr Shaun Green affirmed 11 October 2013 at Annexure SG-4.
The Green Group rearranged employment relationships within the Group. KMS Pty Ltd became Wilson Curry. When it was placed into voluntary administration, the employees at Kensington Gardens became the employees of Eastcoast Management Services Pty Ltd. The placement of the Respondent into voluntary administration was to avoid liability for the proceedings initiated by the Applicant and Ms McMahon and the finding[9] of the Fair Work Ombudsman that they were owed $206,145.10 in wages.
[9] Affidavit of Mr Ian McMahon sworn 16 September 2013 at Annexure IM8.
The Applicant submits that there was a real issue that the Green Group had entered into sham arrangements. Courts will, on occasion, look behind the legal personality to the real controllers. In this case, the companies are all agents of Mr Green, who is a common director.
The Applicant referred to the circumstances when it is appropriate to lift the corporate veil to expose the real relationships (as discussed by Hampton C in Roberg and Ors v FGP Company Pty Ltd (in liquidation) and Steelworks Australia Pty Ltd [2013] FWC 4947 (“Roberg”).
The Respondent’s submissions
The Respondent submitted that the Applicant in his affidavit in support of the Initiating Application, named KMS Pty Ltd as his employer and the letter of employment also states, “Your employer will be Kensington Management Services Pty Ltd”.[10] There appears to be no confusion about the employer at that time. The tax file declaration made by the Applicant names “Kensington Management Services Pty Ltd” as the employer.[11]
[10] Affidavit of Mr Shaun Green affirmed on 11 October 2013 at Annexure SG-1.
[11] Ibid at Annexure SG-2.
The Show Cause letter sent to the Applicant on 2 May 2012 is signed by “Shaun Green, Kensington Management Services Pty Ltd”[12] as is the letter of termination dated 4 May 2012.[13] The PAYG payments summary for each of the relevant years names the payer as “Kensington Management Services Pty Ltd” and the superannuation fund contributions were also made by KMS Pty Ltd.[14]
[12] Ibid at Annexure SG-3.
[13] Ibid at Annexure SG-4.
[14] Ibid at Annexure SG-2.
While there is a commonality of directors among the companies the Applicant seeks to join, this is not a situation of a parent company and subsidiaries. They are all separate entities with separate functions. The common elements are not sufficient to establish any relationship with the Applicant. There is no evidence that the Applicant had any involvement with any of these entities or performed any duties for them. The entities equally had no involvement with the Applicant. The identity of the employer did not change during the course of the employment. The Applicant may have had dealings with individuals who had other responsibilities within the group but they were not acting in that capacity.
The Applicant’s employer continues to exist and is no longer under external administration. The fact that Mr Green is a director of the other entities, as well as the Respondent, does not assist the Applicant. It does not indicate that those entities employed the Applicant. In Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd and Ors [1998] FCA 1465 (“Bellechic”), a Mr Joose was found by the Court to have effective control of all three companies by which the employees could conceivably have been employed. The Court, however, found that that the identification of the person in whom control of the employees resided did not assist in marking out one company rather than another as the employer.
The fact that the Applicant received correspondence on different letterhead, or that the letterhead says ‘Green Group of Companies’, does not identify the entities sought to be joined as the employer. The entities cannot jointly be the employer as the concept of joint employment has not been accepted in Australian law.[15]
[15] See Arcadia v Accenture Australia - Melbourne (2008) 170 IR 288 at [7]; and Henry & Ors vFP Group Pty Ltd and Anor [2013] FWC 2813 at [777].
In this case, the contractual documents represent the reality of the relationship. It is only in limited circumstances that it is permissible to pierce the corporate veil. In Australian Liquor, Hospitality and the Miscellaneous Workers Union, Western Australian Branch v Burswood Catering and Entertainment Pty Ltd [2002] WAIRComm 4778 (“Burswood”), the Full Bench of the Commission set out the three circumstances in which courts and tribunals have been prepared to lift the corporate veil:
(a) When a particular law requires it to be done;
(b)When it can be established that the company is an agent of its controllers;
(c)When the Court is satisfied the company has been created as “mere façade” or “sham” to conceal the true facts.[16]
[16] [2002] WAIRComm 4778 at para.53.
The Respondent submits that KMS Pty Ltd, now known as Wilson Curry Pty Ltd, was registered in 1994. There is no basis on which points (a) or (b) of Burswood could apply and the Applicant has not established that the creation of KMS Pty Ltd was a ‘sham’. The fact that it was later placed in administration cannot be relied upon as it post-dates the termination of the employment.
Considerations
The Applicant initiated proceedings under s.365 of the Act against “Kensington Management Services Pty Ltd T/A Kensington Gardens”. Fair Work Australia (“FWA”) conducted conciliation conferences on 27 June and 17 September 2012 and on 22 October 2013, issued a certificate under s.369 of the Act.[17]
[17] Certificate Under Section 369 issued by Fair Work Australia, 22 October 2012.
On 1 November 2012, the Applicant initiated proceedings under s.539 of the Act naming “Kensington Management Services Pty Ltd” as the Respondent. On 3 May 2013, the name of the Respondent was amended to ‘Wilson Curry Pty Ltd’ under the provisions of Rule 7.03 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
The Applicant now seeks to further amend the application to include the following as Respondents:
·A&M Green Investments Pty Ltd ACN 123 073 718;
·S&K Green Investments Pty Ltd ACN 122 778 063;
·GreenGroup Property Investments Pty Ltd ACN 132 608 149;
·GreenGroup Property Holdings Pty Ltd ACN 122 564 694;
·Kensington Gardens Lifestyle Estates ABN 72 527 097 232;
·A&M Investment Pty Ltd ACN 009 976 470;
·Glendette Pty Ltd ACN 010 798 268; and
·Eastcoast Management Services Pty Ltd ACN 009 845 167.[18]
[18] Application in a Case of Mr Ian McMahon filed 17 September 2013.
The Applicant alleges a contravention of s.351 of the Act. Section 351 of the Act refers to adverse action taken by an employer. Unless the provisions of s.550 of the Act which applies to “a person who is involved in a contravention” are relevant, only an employer can be a respondent to an application under s.539 of the Act, which alleges a contravention of s.351 of the Act.
There are circumstances where a person may be an employee of more than one entity. In TheState of Queensland v Whiteman [2006] QSC 325 (“Whiteman”), the respondent was employed by both Hinchinbrook Island Resort Pty Ltd (“the Resort”) and Hinchinbrook Island Ferries (“the Ferries”). Mr Whiteman was paid a salary by the Resort with the Resort recouping 40% of his wages from the Ferries. The employment agreement provided that Mr Whiteman was to work for both companies. There was no delineation between the two companies suggesting that one would be the sole employer and Mr Whiteman performed functions for both companies. Despite the fact that the Resort paid his wages, the Court found that at all material times Mr Whiteman was employed by the Ferries in what appeared to be shared employment.
In Whiteman, the employee had a contract with both employers and performed work for both employers. While Australian courts and tribunals have been asked, on occasions, to determine that two entities were the ‘joint employers’ of an employee, these cases have generally arisen in the context of labour hire arrangements and have not given rise to an acceptance, in any cases of which I am aware, that a situation of ‘joint employment’ existed. Generally speaking, the task of the Court has been to determine who is the ‘real’ employer.
The Respondent drew the Court’s attention to the decision of Ryan J in Bellechic. As noted by Warren J (as her Honour then was) in Romero v Auty [2000] VSC 462 (“Romero”), referring to Bellechic:
Ultimately, the whole of the circumstances surrounding the employment relationship including the subsequent conduct of the parties is relevant to the assessment to be made by the court. Of course, documents are relevant but not necessarily determinative. Ultimately the decision rests on the nature of the business in which the relevant employee worked and conversations and conduct at the time of the original engagement of that employee: see Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd & Ors, unreported judgment of Ryan J of the Federal Court of Australia, 19 November 1998, (1998) 1465 FCA 19.[19]
[19] [2000] VSC 462 at para.10.
Her Honour went on to say, with respect to the matter before her, that the considerations were:
[T]he nature of the business and the work performed, conversations and actions at the time of the engagement of the employees, identification of the terms and conditions of the relationship of employment, the identity of the entity that exercised control and the manner of such exercise with respect to the applicants in their capacities as employees, the identity of the entity that provided the materials, equipment and resources to enable the applicants to perform their work, the identity of the entity to which the applicants as employees had obligations of reporting, the understanding and belief of the parties themselves, the methods and means of payment to the applicants and the matters revealed from the various management and administrative documents relating to the company.[20]
[20] Ibid at para.42.
In this case, the evidence is that the Applicant entered into a contract of employment as Caretaker of Kensington Garden Shepparton commencing 1 February 2010. The letter of appointment dated 20 January 2010,[21] states that “your employer will be Kensington Management Services Pty Ltd” and the terms and conditions of the employment were “governed by the Kensington Management Services Pty Ltd Greenfield Collective Agreement”. The letter was signed by “Jenni Fahey, Manager, Kensington Garden Shepparton”.
[21] Affidavit of Mr Shaun Green affirmed 11 October 2013 at Annexure SG-1.
At the time of the appointment, the tax file number declaration signed by the Applicant named “Kensington Management Services Pty Ltd” as the employer.[22] An extension to the Applicant’s probationary period dated 15 April 2010, was signed by Ms JENNI FAHEY (“Ms Fahey”) on letterhead of “Kensington Gardens, Shepparton” and Ms Fahey signed the letter as “Manager, Kensington Gardens, Shepparton”. A footer to the letter also has the words “Choice Retirement Communities”.[23]
[22] Ibid at Annexure SG-2.
[23] Ibid at Annexure SG-2.
It was on the letterhead of ‘Choice Retirement Communities’ that Mr Ward corresponded with the Applicant on 6 February 2010,[24] about certain matters relating to the Applicant’s remuneration – although the Applicant states and the Respondent accepts that this correspondence was received in February 2012.[25]
[24] Affidavit of Mr Ian McMahon sworn 16 September 2013 at Annexure IM13.
[25] Affidavit of Mr Ian McMahon sworn 16 September 2013 at para.13(i).
The PAYG payments summaries for the years ending 30 June 2010,
30 June 2011 and 30 June 2012 name the payer as “Kensington Management Services Pty Ltd” and are signed by Mr Lollo as the authorised person.[26] The HESTA superannuation fund contributions also appear to have been paid by “Kensington Management Services Pty Ltd”.[27] The rental on the property where the Applicant resided was paid to Kensington Management Services Pty Ltd although the invoice also has the “Green Group” logo.[28]
[26] Affidavit of Mr Shaun Green affirmed 11 October 2013 at Annexure SG-2.
[27] Ibid.
[28] Affidavit of Mr Ian McMahon sworn 16 September 2013 at Annexure IM16.
It would appear from material before the Court that the Applicant reported to Ms Fahey who left her position in early 2011. At that time the Applicant corresponded directly with Mr Lollo, who forwarded the correspondence to Mr Green, concerning employment matters.[29] The Applicant around that time also met with both Mr Green and Mr Ward about employment issues.
[29] Ibid at Annexure IM12
Correspondence received by the Applicant on 7 February 2012, confirming his appointment as “Caretaker at Kensington Garden Shepparton” is on the letterhead of the “Green Group of Companies” and signed by “Shaun Green, Director, Green Group of Companies”.[30]
[30] Ibid at Annexure IM14.
The Show Cause letter sent to the Applicant on 2 May 2012,[31] and the letter of termination dated 4 May 2012,[32] are also on the letterhead of the “Green Group of Companies” but signed “Shaun Green, Director, Kensington Management Services Pty Ltd”.
[31] Affidavit of Mr Shaun Green affirmed 11 October 2013 at Annexure SG-3.
[32] Ibid at SG-4.
According to his affidavit, Mr Shaun Green was at all relevant times a director of KMS Pty Ltd and is currently a director of the Respondent. He is also a director of:
·A&M Green Investments Pty Ltd ;
·S&K Green Investments Pty Ltd ;
·GreenGroup Property Investments Pty Ltd;
·GreenGroup Property Holdings Pty Ltd;
·A&M Investment Pty Ltd;
·Glendette Pty Ltd; and
·Eastcoast Management Services Pty Ltd.
Mr Lollo is also a director of each of those companies with the exception of East Coast Management Services Pty Ltd. Mr Ward is an employee of A&M Investment Pty Ltd which provides accounting, compliance and support services to the Green Group. He is Regional Manager of the retirement villages. Between 16 November 2009 and 23 March 2012, Mr Ward was also a director of Kensington Management Services Pty Ltd.
The companies, A&M Green Investments Pty Ltd and S&K Green Investments Pty Ltd, jointly own Kensington Gardens Lifestyle Estates which owns, but does not operate, the retirement village known as Kensington Gardens Shepparton. Since 21 February 2013, Village Management Services Pty Ltd has been responsible for the operation of the retirement village and Eastcoast Managements Services Pty Ltd is engaged to provide the staff.
There is no evidence that the Applicant, during the course of his employment, provided services for any company in the Green Group other than KMS Pty Ltd. Neither the ‘Green Group’ nor ‘Choice Retirement Communities’ would appear to be legal entities capable of employing persons.
At its highest, it might be put that Mr Ward, in his dealings with the Applicant, was acting as an employee of A&M Investment Pty Ltd and in that capacity made decisions about the Applicant’s remuneration and had practical control and direction over the Applicant. Equally, it may be said that in making those decisions and engaging with the Applicant, Mr Ward was acting in his capacity as a director of KMS Pty Ltd.
The Applicant has urged the Court to lift the corporate veil, to look behind the legal personality to the real controllers. The Applicant referred the Court to the decision of Commissioner Hampton where the Commissioner quotes from the WA Industrial Commission’s decision in Burswood on the circumstances under which a Court or Tribunal may lift the corporate veil.[33] The Applicant contends that both the circumstances that ‘the company is an agent of its controllers’ and the creation of the company as a ‘sham’ to conceal the facts apply.
[33] [2013] FWC 4947 at para.74.
It is not clear who, beyond the directors of KMS Pty Ltd, the Applicant contends is or are ‘the controllers’ in this case. There is reference to the ‘Green Group’ but that is not a legal entity. There is no evidence to suggest that one or more of the entities which the Applicant seeks to join were or are controllers of the company, KMS Pty Ltd. The only evidence before me suggests that KMS Pty Ltd was controlled by its directors, who appear at the time of the Applicant’s employment to have been Mr Green, Mr Lollo, Mr ANTHONY GREEN
(“Mr A Green”), Ms MARLENE GREEN (“Ms Green”) and Mr Ward. The fact that Mr Green and Mr Lollo may have also been directors of other companies within the Green Group does not establish that any of those companies controlled KMS Pty Ltd.
The issue of the circumstances in which transactions will be characterised as a ‘sham’ were discussed by Lockhart J in Re Sharrment Pty Limited and Ors v the Official Trustee in Bankruptcy [1988] FCA 179 (“Re Sharrment”). Before discussing the way the term has been considered in other cases, his Honour commented:
“Sham” is a word which, although not infrequently having attracted the attention of the courts usually hovers on the periphery of cases. Here it is at the heart of the case. It is a word which first appeared as slang in the 17th Century and the dictionaries describe it as being of obscure origin. It is indeed a pity that it cannot be relegated to its earlier obscurity because of the ambiguity and uncertainty that surrounds its meaning and application. Ambiguous though its meaning is, it is an ambiguity that has attended the word for centuries: "Let the plot-mungers stay behind, whose art can truth to sham, and sham to truth convert": Oldham's Sat. Imit. Jur. mWKS 1703 (429); "The laws of sham and semblance which are called the 'devil's laws'": Carlyle's Past and Present L.V. 36.[34]
[34] [1998] FCA 179 at para.12.
After considering the case, his Honour concluded:
A "sham" is therefore, for the purposes of Australian law, something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive.[35]
[35] [1988] FCA 179 at para.16.
That paragraph was quoted by the High Court in Raftland Pty Ltd as trustee of the Raftland Trust v Federal Commissioner of Taxation (2008) 238 CLR 516 (“Raftland”) where Kirby J, in a judgment in which his Honour concurred with the majority decision, went on to say (at para.112):
Important to this description is the idea that the parties do not intend to give effect to the legal arrangements set out in their apparent agreement, understood only according to its terms. In Australia, this has become essential to the notion of sham, which contemplates a disparity between the ostensible and the real intentions of the parties. The courts must therefore test the intentions of parties, as expressed in documentation, against their own testimony on the subject (if any) and the available objective evidence tending to show what that intention really was.
As Commissioner Hampton concluded in Roberg:
In this regard, care must be taken to distinguish between what might in industrial parlance be described as a “sham” arrangement and what might on the basis of the relevant authorities be held to be a sham justifying piercing the corporate veil.[36]
[36] [2013] FWC 4947 at para.77.
The evidence is that KMS Pty Ltd was registered in May 1994. There is no evidence that the creation of the company was a ‘sham’ arrangement. It could therefore only be that the contract of employment entered into between the Applicant and KMS Pty Ltd was a ‘sham’ arrangement.
Conclusions
The documentary evidence in this matter supports a conclusion that the employment relationship was between the Applicant and KMS Pty Ltd. It was only post the termination of his employment that the Applicant appears to have questioned whether the totality of the circumstances surrounding his employment might lead to some other conclusion.
There has been no evidence produced to establish any relationship between the Applicant and any of the other entities in the Green Group. Even if Mr Ward, in his dealings with the Applicant was acting as an employee of A&M Investment Pty Ltd and not as a director of KMS Pty Ltd, that does not lead inevitably to the conclusion that the Applicant was an employee of A&M Investments. There is no evidence that A&M Investments controlled KMS Pty Ltd or of the basis upon which Mr Ward, as an employee of A&M Investments, may have provided services to KMS Pty Ltd.
With respect to Mr Green and Mr Lollo, who were both directors of KMS Pty Ltd, there is no evidence to suggest that in their dealings with the Applicant they acted other than as directors of that company.
This is not a case, like Bellechic, where a number of separate corporate entities were participating in the same business. The evidence suggests that during the period of the Applicant’s employment, the only company involved in the operation of the Kensington Gardens Shepparton was KMS Pty Ltd. There were other companies in what is described as the Green Group of companies but there is no evidence that any of them were involved in the operation of the retirement village or the work being performed by the Applicant.
The Green Group is a group of associated companies with many common directors. There is however nothing to show that any of those companies is the controller of any other company in the Green Group. Mr Green is a director of all those companies but while he signed himself on occasions as ‘Director, Green Group of Companies’, he could not be a director of the ‘Green Group’ as such but could only act through a company of which he was a director.
I am satisfied that KMS Pty Ltd had both practical and legal control of the Applicant. KMS Pty Ltd paid the Applicant’s remuneration. KMS Pty Ltd’s directors made decisions about the level of remuneration and made decisions about terminating the Applicant’s employment. KMS Pty Ltd was not acting as an agent for one or more of the companies in the Green Group.
Further, I am satisfied that there is no evidence to establish that either the creation of the company KMS Pty Ltd or the contract of employment between that company and the Applicant were ‘sham’ arrangements.
As there is no evidence to establish that any of the entities that the Applicant wishes to join to these proceedings had an employment relationship with the Applicant, the application for joinder is dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 30 October 2013
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