Miranda v National Australia Bank Pty Ltd
[2010] FMCA 492
•21 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MIRANDA v NATIONAL AUSTRALIA BANK PTY LTD | [2010] FMCA 492 |
| INDUSTRIAL LAW – Applicant seeks orders for unlawful termination of employment – respondent seeks orders for the proceedings to be dismissed – no reasonable prospects of success – contractual relationship. |
| Age Discrimination Act 2004 (Cth) Fair Work Act (2009) (Cth) Federal Magistrates Court Rules 2001 (Cth) Human Rights and Equal Opportunity Commission Act 1986 (Cth) Private Employment Agents Act 2005 (Qld) |
| Carreon v The Honourable Amanda Vanstone [2005] FCA 865 House of Representatives Standing Committee on Employment and Workplace Relations and Workforce Participation, “Making it Works Inquiry into Independent Contracting and Labour Hire Agreements”, 2005 |
| Applicant: | DARIN MIRANDA |
| Respondent: | NATIONAL AUSTRALIA BANK PTY LTD |
| File Number: | BRG 525 of 2010 |
| Judgment of: | Burnett FM |
| Hearing date: | 16 June 2010 |
| Date of Last Submission: | 16 June 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 21 June 2010 |
REPRESENTATION
| Solicitors for the Applicant: | The applicant appeared on his own behalf |
| Solicitors for the Respondent: | National Australia Bank Limited |
ORDERS
That the application is dismissed.
That there are no orders as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 525 of 2010
| DARIN MIRANDA |
Applicant
and
| NATIONAL AUSTRALIA BANK PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
The applicant in this case makes application for orders under the Fair Work Act, alleging unlawful termination and claims against the respondent for contraventions of the Age Discrimination Act 1994 (Cth). The respondent, by way of interim application, seeks orders that the proceedings be dismissed pursuant to Federal Magistrates Court Rules 2001 (Cth) r.13.10 for having no reasonable prospects of success.
The respondent says that the applicant was never employed by it, rather that the applicant was employed by an employment agency, Manpower Services (Australia) Pty Ltd (Manpower). Accordingly, it says it had no contractual relationship with him and it follows from that there was no termination by it of the applicant’s services.
Further, the respondent submits it simply no longer required Manpower to provide contract labour in that situation and, as a consequence of that determination, Manpower withdrew the applicant from the respondent’s premises.
In addition, the respondent says that the second of the two limbs of the application would fail because it fails to comply with the statutory requirements of the Age Discrimination Act.
Background Facts
In his application the applicant contends that he was employed as a business lending advisor at the National Australia Bank. He concedes that this occurred through the medium of a recruitment agency. He says that he believes that he was an employee of the respondent bank and that an employee/employer relationship existed.
The indicia of that relationship, he says, are that – other than for his physical employment at the National Australia Bank – he performed no work through the recruitment agency. He says he had no offer of work through the agency prior to and after his employment with the bank. He says the agency provided no supervision or training to him whilst he was employed at the bank and that, at all times, the bank had the role of principal and control over him.
He says that, unlike a contractor, he was working solely for the interests of the bank and not the agency and – by inference – nor himself. He says he worked at the bank 5 days a week over a continuous period of time and that no end-date for his employment was made known to him until he says his employment was unlawfully terminated.
In affidavits filed in support of the respondent’s application for summary dismissal, the respondent through the evidence of its industrial relations consultant, Julie Swan, deposes that the applicant was never an employee of the National Australia Bank.
She says that, after making inquiries of the bank’s payroll system, that matter was confirmed. She says that the applicant was, in fact, engaged as a temporary worker and placed with the bank by Manpower and that, as a result of his appointment by Manpower the applicant was placed in the My Business Team between 9 November 2009 and 19 February 2010 to perform work as a business lending advisor.
She says that, on or around 19 February 2010, the bank informed Manpower, in accordance with the Labour Hire Agreement that the bank had with Manpower, that the bank no longer required the services of the applicant. She said the bank also informed the applicant of that matter at that time .
She says that when the matter first came on before a Commissioner of Fair Work Australia on 4 May 2010, and the bank was afforded opportunity to do so, she advised Fair Work Australia that the bank was not the employer of the applicant but, for the purposes of conciliation, scheduled for 6 May, the bank agreed to participate.
The bank’s position was advised to Fair Work Australia on 30 April 2010, by way of a letter of that date. It stated that Manpower was the true and correct employer of the applicant. There was a conciliation conference held on 6 May 2010. At that conference, attended by the bank’s representative by telephone, those matters were reiterated to the Commissioner.
In terms of other matters that are relevant to the application, the bank also contends that Manpower is a labour hire company that has a contract with the bank to supply labour to perform work on behalf of the bank and that at all times during the applicant’s placement at the bank Manpower had in place a contract of employment with the applicant. The bank deposes by its affidavit material that at all times during the applicant’s placement at the bank Manpower paid the applicant directly the applicable remuneration and such information was included in the Manpower payslips directed to the applicant.
The bank contends that at all times during the applicant’s engagement with the bank, Manpower was responsible for insuring the applicant in respect of any potential workers compensation claims and that Manpower was responsible for the payment of the mandatory employer’s superannuation contributions under relevant legislation.
Jennifer Lee is a solicitor and company secretary for Manpower. In an affidavit sworn by her in support of the bank’s application she too deposed that Manpower was a labour hire company which provides staff to various Australian companies on a contract basis. She noted that Manpower had an excess of a 1000 clients in Australia and employs in excess of 5000 employees daily.
She deposed that the respondent bank was one of Manpower’s clients and that, from time to time, Manpower provided staff to the bank on a contract basis. She swore that between 9 November 2009 and 19 February 2010 Manpower employed the applicant in a manner consistent with the arrangement she deposed to. She said the applicant was employed by Manpower on a casual basis and that he was paid a casual rate of pay and that the applicant’s employment could be terminated by either party by giving one hours notice.
She said that between 9 November 2009 and 19 February 2010 Manpower directed the applicant to provide services to the bank at the bank’s customer support centre in Coorparoo, Queensland. She deposed that the work to be carried out was that of a business lending advisor within the My Business team of the bank at that location.
She said that specifically this involved providing dedicated support to the bank’s retail My Business managers by processing lending applications on behalf of the bank’s small business customers. She deposed that on 19 February 2010 the bank confirmed to Manpower, in accordance with the terms of its agreement for the provision of staff, that it no longer required the services of the applicant and from that time the applicant’s casual assignment with Manpower, at the bank, ended.
She noted that at all times during that period, that is from 9 November 2009 to 19 February 2010, Manpower was the employer of the applicant. She swore that upon the termination of that assignment the applicant was maintained as a candidate for employment by Manpower with Manpower’s various other clients. That upon the applicant indicating his availability for work, Manpower would endeavour to find suitable roles with Manpower’s clients for the applicant to perform work for and on behalf of Manpower.
She annexed to her affidavit business record documentation relevant to the application. That documentation corroborates much of the deposition contained in the affidavit by Ms Lee. Commencing with the Manpower registration form it can be seen the form is one to be completed by a prospective employee. The form itself is identified as a Manpower registration form. It identifies the names of the relevant candidate, relevant particulars, referee details and then proceeds to provide, on the second page, in these terms:
“I agree that if I am employed by Manpower, now or at any time in the future, my employment may be terminated at any time without liability to me for wages or salary except for such wages or salary, which I earned prior to the date of my termination. I understand the term of my employment with Manpower shall be limited to the duration of any temporary assignment as defined by Manpower or its clients, which I accept.
The completion of Manpower’s application process shall not create any employment contract or relationship between Manpower and myself. An employment contract and/or relationship will only arise between myself and Manpower when I accept an assignment and will end at the completion of that assignment.”
(Emphasis mine)
Furthermore and, again, to some extent corroborative of the nature of the relationship between Manpower and the employee, is a provision on page 2 which is in these terms:
“I agree not to accept any offer of employment (permanent, temporary or contract work) except through Manpower, from an organisation Manpower has introduced me to. I agree not to accept such employment for a period of six (6) months from introduction. I have given full consideration to this restriction and agree it is fair and reasonable.”
The second provision which I have identified again corroborates the earlier provision which is that Manpower employs the employee and in consideration of that arrangement agrees to this restrictive covenant.
In addition to the Manpower registration form a further sheet is provided to employees. It is acknowledged by execution by the employee of the sheet entitled, “Information Statement for Work Seekers”. It identifies, for the benefit of employees, that the relationship between Manpower and the employee is a relationship with a private employment agent, being one regulated by a number of Commonwealth and State laws, including, in particular, the Private Employment Agents Act 2005 (Qld).
It is quite plain from the expression in the balance of the form that the arrangement between the prospective employee as a job seeker and Manpower, in this instance, is one which seeks to give effect to a contract between them. Evidence of the nature of the relationship and the matters which are deposed to is further affirmed by the pay advice slip which is prepared and notes these matters.
The affidavit of Jennifer Hunt, at annexure B, attached a pay advice in respect of the applicant. They pay advice identifies the employer as Manpower Services (Aust) Pty Ltd. It notes it is a pay advice in respect of the applicant, that is Darin Miranda, of 9/37 Slobodian Avenue, Eight Mile Plains. It notes that, apart from his employee code, and for the ending period to which it relates, that it pertains to his employment on behalf of Manpower at the National Australia Bank as a loans officer for a period which is specified in the pay advice itself.
The pay advice notes the number of hours which he worked, the rate and the total. In the columns adjacent to the pay item section at the top of the page and at the bottom of the page, it identifies his gross pay, which can be seen to be carried forward from the pay item box with an allowance for tax, followed by relevant deductions, which in this instance do not apply. I note that the box under the “current box”, includes a box for “YTD”, or year to date, which annualises that sum.
The pay slip, in my view, constitutes irrefutable evidence of the status of the contractual relationship between the applicant and Manpower.
Notwithstanding these matters the applicant contends that he was an employee of the bank. He says that this arises by reason of the indicia which I have earlier identified, and which is particularised at paragraph 2 of his application.
Save for the conclusion of law which is to be concluded from the matters he contends for, the facts underlying those matters are not in dispute.
The applicant says that these factors evidence an employment relationship in terms of the principles provided for in Hollis v Vabu Pty Limited (2001) 207 CLR 21. However that case is clearly distinguishable from the present case. The point in issue in Hollis’s case was whether a courier cyclist engaged by a third party was personally responsible for his negligence or whether he was an employee of a third party and therefore the third party was vicariously liable for the courier cyclist’s negligence. That is, whether the courier cyclist was an independent contractor or an employee. If he was an independent contractor then in that case he would be responsible for his own negligence, but as an employee the employer would be vicariously liable.
The court, in that case, closely examined the nature of that relationship and, in doing so, touched upon various characteristics which have been identified by the applicant. However, as I have earlier noted, that was not the ratio of the case and, to that end, the case is of no assistance to the applicant. For the applicant’s benefit similar issues were considered in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, a case which was affirmed by the court in Hollis.
This case is different. The applicant is not an independent contractor he is an employee of Manpower. For that reason the principles relevant to an indicia distinguishing employees from independent contractors which might apply in the event that there was no employer identified do not assist the applicant in this case.
The contractual relationship between the applicant and Manpower is plain. It does not appear to be contested by the applicant save that he seeks to explain the relationship as that of a recruitment agent and then explain, by reason of the matters he has identified at paragraph 2 of his statement of claim, that that relationship of employee to recruitment agent is one of a temporary rather than an on-going nature and accordingly by default he was not an employee of Manpower but rather an employee of the bank.
However, in my view, that approach ignores the evidence particularly to be found in the Manpower registration form which sets out quite plainly that he is employed by Manpower. That is, by his agreement, a term of his employment with Manpower is limited to the duration of any temporary assignment as defined by Manpower or its clients.
The nature of that engagement, as I have earlier noted, is affirmed by his agreement to enter into the restraint of trade which prevents him from seeking any offer of employment with any person or organisation to whom he is introduced by Manpower.
These types of arrangements are quite common. They have been the subject of discussion at a parliamentary level, most recently in the House of Representatives Standing Committee on Employment Workplace Relations and Workforce Participation in its inquiry, Making It Work: Inquiry Into Independent Contracting and Labour Hire Arrangements in August 2005.
In the Committee’s report, particularly at paragraphs 314 to 316, the committee made these observations:
“3.14 Labour hire of contractor services involves the labour hire agency hiring contractors (that is workers with their own Australian Business Numbers (ABNs), as determined by taxation legislation) to host businesses to meet the client’s production or service requirements.
3.15 The contractor services model is based on ‘Odco’ arrangements, which are independent contracting arrangements in the labour hire industry. ‘Odco’ arrangements create an independent contracting arrangement where the workers are neither employees of the labour hire agency nor the host business. These kinds of arrangements were upheld in a full Federal Court decision, Building Workers Industrial Union of Australia v Odco Pty Ltd. On other occasions, courts have found that contractual arrangements did not confirm to ‘Odco’ arrangements, and have held on the facts that the workers in question were ‘employees’, notwithstanding having been described in contractual documents as ‘contractors’.11
3.16 ‘Odco’ arrangements operate in a range of industries. Independent contractors working under this system include farm hands, doctors, secretaries, personal assistants, family day-care workers, fishermen, salespeople, cleaners, security guards and building workers.12
Recruitment services
3.17 Recruitment services also fall within the role of some labour hire agencies. Recruitment services source and place workers on behalf of a client business. Workers are employed directly by the host business under this arrangement. An example of a recruitment service is the Job Network Service.”
Those services are to be contrasted to labour hire employee services.
“3.11 Labour hire of employee services involves the employment of labour hire workers by a labour hire agency to a host business to meet specifically the organisation’s production or service requirements. This arrangement is the most common method of labour hire.
3.12 The labour hire agency pays the worker and withholds income tax deductions. The worker may be employed casually (the majority), permanently, for a fixed term or contract on a full-time or part-time basis, or as a trainee or apprentice.
3.13 The employee services model is well established at common law. The labour hire agency will be found to be the employer of the worker rather than the host even though the general day-to-day control over the worker’s performance rests with the host. This is because in a genuine labour hire arrangement, there is no contract between the host and the labour hire worker and therefore there cannot be an employment relationship between them.”
I have outlined those parts of the report which I hope will assist the applicant in understanding why his circumstances fall within the labour hire employee services classification rather than labour hire contract of services which he appears to contend for.
The explanation is apparent from the words of his agreement with Manpower, but, to re-emphasise, the difference of course is that in the labour hire employee services arena there is a clear contract. The facts in this case demonstrate such exists in this instance.
For completeness on this point and to satisfy the applicant that there is nothing untoward about these arrangements, adequate protections have obviously been introduced in more recent years to address the nature of the conduct of agencies undertaking this type of activity, such illustrations can be found in the Private Employment Agents Act 2005 (Qld), and its code of conduct provided for by regulation, as introduced in the Queensland parliament in 2005.
It follows from my view of the facts that the applicant has no real prospects of success in respect of the first round of its application and, accordingly, the application ought be dismissed on that ground.
Alleged Age Discrimination Act contravention
The second ground advanced for the applicant is for a remedy for alleged contravention pursuant to the provisions of the Age Discrimination Act. In this instance the applicant has not undertaken the necessary preliminary steps required under the Act. That is, he has failed to lodge a written complaint with the Human Rights and Equal Opportunity Commission[1] and as such the complaint has not been terminated by the President.[2]
[1] Human Rights and Equal Opportunity Commission Act 1986 (Cth) s.46P
[2] Human Rights and Equal Opportunity Commission Act 1986 (Cth) s.46PH
Furthermore as was indicated in Carreon v The Honourable Amanda Vanstone [2005] FCA 865 at [11]:
“…It is clear that no application has been made to, let alone terminated by, HREOC, and, accordingly, no right has been conferred on any effected person to apply to this Court alleging unlawful discrimination.”
That step is a prerequisite to the commencement of proceedings and, at this stage, the evidence does not demonstrate that step has been taken. Accordingly, there is presently no basis for a claim under that legislation.
That claim too has no reasonable prospect of success and, accordingly, it too ought be dismissed.
Orders
In the result the orders will be that the application is dismissed. The respondent seeks no order as to costs so the order will be that there be no order as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 31 August 2010
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