Mr Adriano Leslie Zuccon v Powa Productions Pty Ltd
[2024] FWC 1640
•24 JUNE 2024
| [2024] FWC 1640 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Adriano Leslie Zuccon
v
Powa Productions Pty Ltd
(C2024/1239)
| COMMISSIONER LEE | MELBOURNE, 24 JUNE 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection that Applicant not an employee – determination that applicant was a contractor and not an employee- jurisdictional objection upheld-application dismissed.
Introduction
This decision concerns an application made by Mr Adriano Zuccon (the Applicant) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (Cth) (the Act). The Applicant contends that Powa Productions Pty. Ltd. (the Respondent) contravened various provisions of Part 3-1 of the Act by dismissing him from his employment. The Respondent disputes that the Applicant was an employee and pressed a jurisdictional objection on that basis.
The Fair Work Commission (Commission) generally does not have a determinative function in relation to applications brought under s.365 of the Act unless the parties agree to the Commission arbitrating the matter. Rather, the Commission’s role is to convene a conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the Respondent denies that the Applicant was an employee and would therefore not have been capable of being dismissed withing the meaning of the Act and objects to the application on this basis, the Commission is required first to determine whether the Applicant was in fact an employee.[1]
The evidence
The Applicant gave evidence on his own behalf. Mr Geoffrey Knight gave evidence on behalf the Respondent. Mr Knight is the sole director of the Respondent.
The Respondent provides sound, lighting, staging, vision and logistic services for live concerts, festivals and similar events. The Respondent engages both employees and contractors to provide the labour needed to provide its service offering. The Respondent does not ordinarily use written contracts for its contractors. It is not in dispute that there was no written contract pertaining to the Applicant.
The Applicant operates a business known as TBB Music Tuition and Artist Services (ABN: 27 257 457 639). That business was in operation prior to the Applicant’s engagement by the Respondent.
The Applicant was first engaged by the Respondent in February 2022. He was initially engaged as a casual employee for a short period. The Applicant was offered casual employment by the Respondent. The Applicant sent an email to Russell Gray (also known as and hereinafter referred to as Rusty) an employee of the Respondent on 24 February 2022. That email was in response to an email from Rusty asking for employee forms to be returned. The email sent by the Applicant in reply was in the following terms: “Thanks Rusty. Hey is it possible to operate as a contractor for powa gigs?”[2] There does not appear to have been a reply to that email from Rusty or any other representative of the Respondent.
Subsequent to that email, the Applicant provided invoices to the Respondent in order to be paid for his labour. Examples of the invoices were provided by Mr. Knight[3]. The invoices are headed TBB Music Tuition and Artist Services. They set out a general description of the service provided, for example, RHST Frogs Hollow, Queens Park Toowoomba QLD. TRAVEL/BUMP IN GROUND SUPPORT SERVICES 12.04.2023. A daily rate is quoted, usually $400.00 a day, although there are variations.
The Applicant confirmed during the hearing that the arrangement to be engaged as a contractor was at his request:
“Commissioner: Wasn't it the case that – tell me if there's any dispute about this – that they offered you work as a casual employee and your response to that was say, to say, 'No, I want to be engaged as a contractor.' It seems that in the evidence there was no email response to that, and I think that's what you're trying to get at. What actually happened after that was, you invoiced them as – through your ABN and they paid those invoices. That's the sum total of the evidence on the matter, isn't it?
Mr Zuccon: Yes.”[4]
The Applicant asserts that Rusty told him on or around December 2022 that he would essentially “operate as a casual” but that he would invoice under an ABN[5]. This claim from the Applicant is inconsistent with his own evidence that he was actually offered the position as a casual employee but that it was he, the Applicant, who sought that a different contractual arrangement be entered into with the Respondent.
Consistent with the engagement being one of principal and contractor, the Applicant took care of his own taxation affairs and earnt all his remuneration by way of payment by the Respondent for the invoices that he provided to them. The Applicant confirmed this arrangement during the hearing:
“Mr Ryan: Okay. And you took care of all your own taxation affairs? The Respondent did not.”[6]
“Mr Ryan: So what you effectively said then is that Powa didn't deduct Pay As You Go contributions, did they, to the taxation office? No.
All your remuneration was received by you and based off your invoices? What (indistinct).
Your remuneration, that the reward for your labour, that was all based on your invoices and you paid your tax after that? Yes.
Yes, okay. And that was for the entirety of your working time at Powa? Yes.”[7]
There was some debate as to the number of engagements of the Applicant, particularly during 2023. However, this seemed to relate to differences of view as to what was an “engagement” and what was a “shift”. Mr. Knights evidence was as follows:
“23. I have searched the Respondent’s records in relation to work provided by the Applicant. Our records indicate that the Applicant:
(a)was engaged five times in calendar year 2022;
(b)was engaged twenty one times in calendar year 2023; and
(c)was engaged four times in calendar year 2024.”[8]
The Applicant pointed out that the number of days worked was a greater number than the number of engagements. In any event, it was conceded by the Respondent that the Applicant worked 105 days for the Respondent in the year of 2023[9].
A key element of the Applicants’ case appears to be that there was a change to the terms of his engagement during 2023 associated with his higher frequency of engagements. The Applicant accepts that he sought to be engaged as a contractor by the Respondent. However, asserts that the position changed in 2023 as he was “offered an ongoing touring position”[10]. I note there is no evidence to support that proposition beyond the claim of the Applicant to that effect. The Respondent refutes that claim.
The following exchange on cross examination provides an insight into the Applicants’ position on the point:
“So what you're saying there in effect, is that the terms and conditions as already agreed just continued into the touring season, isn't that right? As at that – at least at that time? Well, I am not sure if that's entirely accurate because - - -
Well, is that – just answer me is that what you're saying, or not? Or am I putting words in your mouth? Obviously what is typed there is what is being said. Yes. Without question.
Well, you don't talk about what is being said there, you just say, no terms – well, you don't say conditions, but no rates or terms were discussed? That's correct. I am trying to recall back to the period, you know, phone calls with Rusty or interactions with manager – a manager.
Yes. Okay. So at the time you were engaged or at least asked to express interest in touring, no further terms and conditions were presented to you? Now, I would like to offer a correction, because I remember discussing with Rusty - - -
No, I just – you can offer a correction, but just say yes or no and then - - -? No.
Okay. Please, go ahead? So discussing with Rusty, I actually reduced my rate. My hourly rate. So that was discussed outside of that, I don't believe rates terms, et cetera, were discussed.
Your rate continued at – well, I put it to you that - - -? Well, it went from $45 to 40 an hour.
And you added, at some point during 2023, you added a per day rate is that about right? Sorry, a show day rate, rather? So when touring was started in 2023, there wasn't a tour in
2022. Per diems - - -
No, I withdraw that, I am talking about a show day rate at paragraph 32 of your statement? That – that was paragraph 32, which page? Twenty-six? Yes.
Page 26? (Indistinct) 203 to (indistinct) - yes that's outlined at Exhibit - - -
Okay, well, I guess - - -? But, yes. It says – yes, mate. Sorry, Yes, Mr Ryan. Ah - - -
So what I am putting to you is that you assert at different points in your materials that the nature and conditions – the terms you use, changed drastically in 2023, do you still assert that? In terms of employment, the nature of the role changed drastically.
Well, let's just say that as I understand it, the nature and conditions of your contract or employment or whatever it is - - -? The verbal agreement was changed.
All right. So - - -? The verb – any sort of verbal contract between Rusty and myself which at the time, with the respondent, Rusty did all communication. So the contract was 100 per cent altered.
I suggest to you that nothing changed. Nothing at all in terms of – terms that the Commissioner can identify, nothing changed at all? I disagree with that. If you can see, as raised before, five times in five shifts in calendar year 2022, 105 shifts in calendar year 2023, there was no flights in 2022, the respondent paid for flights, the respondent booked me, the applicant on every flight, any accommodation was booked. Accommodation changed interstate. There was no interstate work until 2022. There was - - -
But wait, just so – so, I am not tricking you. The – when I say nothing changed, I will concede 100 per cent it's already in Mr Knight's evidence that the frequency of your engagements changed exponentially quite a lot. You worked 105 days, I think is your evidence, that's not challenged. So I absolutely would concede that you worked more frequently. I am just simply suggesting in terms of your oral or partly oral or partly written agreement with the respondent, nothing changed? Things changed - - -
I know that things changed? What did not change is that I was engaged by and represented the respondent.
You were certainly engaged by them. We concede that. And you certainly performed labour for them, so there's no – but I am simply and I think I have gotten your answer, I don't want to get too bogged down in this, but I am putting to you that nothing changed other than the frequency of the engagements, for reasons that - - -? I am disagreeing with you, Mr Ryan.
Okay. Thank you. You continued to invoice for your services, is that right? Yes.”[11]
The Applicant’s rather argumentative approach and general evasiveness made it somewhat difficult to follow his evidence at times and the above exchange is an illustration of this. However, it seems apparent that the Applicant asserts that, in some way, his contract had been altered during 2023. However, the actual evidence, including from the Applicant, is that while the frequency and type of work changed, there was no actual change to the contractual relationship. There is simply no evidence that the Applicant’s engagement as a contractor (as was sought by him at the outset) changed to one of an employee. He simply was engaged more frequently in 2023.
Mr Knight stated that the Applicant used a combination of his own tools as well as the Respondent’s tools in carrying out the work and that the Applicant used his own mobile phone, drove his own vehicle, used his own hi-vis vest and steel capped work boots. There was no real contest to that evidence. The Applicant accepts that he “sometimes” provided his own hi-vis vest, raincoat, podger (a type of universal shifting wrench) and a shifter. However, he maintains he did this despite all of the necessary tools and production equipment being supplied by the Respondent. The Applicant was provided with a branded polo uniform by the Respondent[12]. Although, there was no evidence that he was required to wear that uniform.
The Applicant does not dispute that he was operating and is still operating his own business. Mr Knight’s evidence is that the Applicant was at all times free to work with other businesses and employers. The Applicant does not dispute this. The Applicant’s evidence is that he chose to prioritise the Respondent’s business[13]. However, there is no evidence that there was any contractual obligation on him to do so. The Applicant had other employment throughout his series of engagements with the respondent. He was a casual employee for the Melbourne Convention and Exhibition Centre. The Respondent was aware he had other engagements but did not know details of those engagements[14]. However, it is apparent that there was no restriction placed on the applicant in terms of other work he chose to perform. While the Applicant may well have prioritised the work of the Respondent, there was no evidence (including from the post contractual conduct that was examined) that there was any contractual requirement that he do so.
In February 2024, a representative of the Respondent called the Applicant and stated that he would not be required for the next two shows. The Applicant sought an explanation for this and on 19 February he sent an email to the Respondent seeking an explanation in writing for being taken off the two Queensland shows. Further correspondence was then sent from the Applicant to the Respondent, making various claims, most relevantly that he was in fact an employee. Mr. Knight replies to that email stating that as the Applicant sent an email on 24 February 2022 asking to be engaged as a contractor, that was accepted, and he was engaged as a contractor from that point on[15].
The work arrangement seems to have been one where work was offered for a number of days at a time, associated with, usually “bumping in” and “bumping out” the various infrastructure such as stages and sound equipment needed to hold the concert or festival. The Applicant asserts he was required to be available for ‘a season’, however, that proposition is rejected by Mr Knight. His evidence on the point was as follows:
“So, where the applicant says here, 'When you're offered a touring position they told me – and told I needed to be available for the season, the shows being weekly', do you agree with that, that that's what they're told? They're asked for the show, not necessarily for the season, for shows. The season for us is generally October through to the end of April and that's not just one tour, that's – you know, so when we do that, then we will put on seasonable contractors because we're employing them for a season.
Okay. And what about - - -? I disagree with the statement that he was told to be available for a season. It was for the whatever, the tour or whatever the jobs were currently and then - - “[16]
Mr Knight also rejected Applicant’s claim that he was expected to have full time seven-day availability to the Respondent:
“Yes, so what's the – what's your answer? So my answer is that no one's expected to be available seven days a week for a start. Secondly, we have work that pops in and so we will send it out by Find My Shift and if those are around and not able to work, they will accept it and do the job. So we'd have no expectation on anyone other than myself probably to be available seven days a week.”[17]
The work the Applicant performed included general tasks such as loading and unloading trucks, cooking meals and cleaning, through to stage building, setting up power, specialised audio and visual equipment set up[18].
The Applicants’ evidence is that “staff” were allowed to carry out the work as they saw fit, though there was “direction” from a production manager, director or senior departmental technician. The Applicant claims that Mr Knight would visit site many times and very specifically direct how tasks were to be completed[19]. However, Mr Knight’s evidence on this was as follows:
Commissioner: “ ‘Many times, Geoff', and I am just going to presume that that is you, ‘would visit site and very specifically direct our tasks that were to be completed'. What do you say about that? Mr. Knight: So, yes, we have production manager who is responsible for the site. When I have visited and there is two in mind, I think, one was hello sunshine which was 8in Scoresby and one in Mornington. I am holding the building commissioner – sorry, I have got the registration from the VBA and so I sign off on the structure and what we put in, so if I will turn up to site and see something's not necessarily been done according to the engineering or what - the site specific requirement is, then I will put my two bit in and go, please do it this way, this is what we're doing and communicate that to the production manager so that when moving on, everyone's doing it the way I would see it needed to be done under the engineering.”[20]
“So with respect to general construction, as you mentioned, there's construction? Yes. So obviously again like health and safety site conditions, inductions, there is certain legal requirements that I am obligated to sign off on, under the VBA to ensure that the stage has been built correctly that the correct weights are done. There's quite a few lists that I do, when I do it and check off.”[21]
The Applicant refers to the contract being a potential sham contract. There is simply no evidence that the Respondent misrepresented a proposed employment relationship as a proposed independent contractor relationship. The evidence is that the Applicant sought the contractor relationship and the Respondent, as evidenced by its subsequent actions, agreed to that arrangement.
The Respondent approved a Workcover claim made by the Applicant for an injury sustained at work on 28 November 2023. However, the Respondent pointed out that the Applicant described himself in the Workcover application as “contractor” and “sole trader”.[22]
The law to be applied
In order to be dismissed within the meaning of the Act, one needs to have been dismissed from an employment relationship. That is, the Applicant needs to have been, at the relevant time, an employee.
The law as it pertains to determining whether a person is an employee or contractor has been an evolving one. The relevant legal principles as they currently stand, particularly in circumstances where, as here, there is not a comprehensive written contract, was succinctly set out by the plurality in EFEX Group Pty Ltd. v Bennett [2024] FCAFC 35.
“6. Where the rights and duties of the parties are “comprehensively committed to a written contract”, and the contract is not a sham, varied, waived or the subject of an estoppel, the obligations established by that contract are decisive of the character of the legal relationship: Personnel Contracting[23] at [43]–[44], [59] per Kiefel CJ, Keane and Edelman JJ; and at [183] per Gordon J (Steward J agreeing). In order to ascertain the relevant rights and obligations, the written contract is to be construed in accordance with established principles of contractual interpretation generally: Personnel Contracting at [60] per Kiefel CJ, Keane and Edelman JJ; and at [173] per Gordon J (Steward J agreeing).
7. This case did not involve any written contract at all, much less a comprehensive written contract. It was a wholly oral contract, with sparse details of the agreement reached expressed in the lead up to its formation. In the absence of a written contract and no evidence of a particular conversation during which the contract was made, “evidence of the parties’ conduct must necessarily be considered in order to draw inferences as to whether the meeting of minds necessary to create a contract has occurred and what obligations they have thereby undertaken”: Personnel Contracting at [177] per Gordon J (Steward J agreeing), as summarised in Chiodo v Silk Contract Logistics [2023] FCA 1047 at [9].
8. As Kennett J explained in Chiodo at [8]–[9], where there is no written contract, the identification of the parties’ contractual rights “must proceed somewhat differently but the fundamental task is the same: the parties’ contractual rights and obligations are to be ascertained and characterised”; and the focus is on the ascertainment of the legal rights and obligations of the contracting parties, “rather than how they behaved in the performance of their contract”.
9. The terms of an oral contract may be able to be inferred from the circumstances, including in whole or in part from the parties’ conduct or a course of dealing between them, or implied where necessary for business efficacy: Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; 406 ALR 678 at [21]–[22] per Kiefel CJ and Gageler J.
10. Thus, whether the contact is written or not, or is oral in whole or in part, the characterisation of the relationship between the parties depends on their contractual rights and not on circumstances, facts or events that do not affect those rights. It follows that a “wide-ranging review of the entire history of the parties’ dealings” is neither necessary nor appropriate for the purpose of characterising the relationship: Personnel Contracting at [59] per Kiefel CJ, Keane and Edelman JJ; see also [185]–[189] per Gordon J (Steward J agreeing).
11. The principles of contract interpretation also apply to the terms of an unwritten contract that are able to be ascertained, inferred or implied. They allow regard to be had to circumstances surrounding the making of the contract and events and matters, known to the parties at the time of contracting, which assist in identifying the object or purpose of the contract. The nature of the work contracted for and the arrangements of the supply or provision of any tools or equipment to the putative employee may also be relevant. Generally, things said or done after a contract was made are not legitimate aids to its construction. In a case such as this, for a matter with no necessary connection to the contractual obligations of the parties to have any bearing on the characterisation of their relationship, “it must be concerned with the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship has come to play out in practice”: Personnel Contracting at [61] (Kiefel CJ, Keane and Edelman JJ).
12. The central question that remains, under an unwritten contract as in a written contract, is whether or not a person is an employee. As was observed in Personnel Contracting at [39] per Kiefel CJ, Keane and Edelman JJ (see also [113] per Gageler and Gleeson JJ), while the dichotomy between a person’s own business and the putative employer’s business may not be perfect so as to be of universal application, because not all independent contractors are entrepreneurs, that approach is still useful. That is because it focuses attention on whether the putative employee’s work as contracted to be performed was so subordinate to the putative employer’s business as not to be part of an independent enterprise. It also avoids the danger of an impressionistic and subjective judgement, or ticking off a checklist, running counter to objective contractual analysis.
13. Once the contours of the legal relationship are identified, its characterisation as one of employment or not often hinges on two considerations identified in Personnel Contracting, in particular by Kiefel CJ, Keane and Edelman JJ at [36]-[39], each of which may involve questions of degree, namely:
(a) the extent to which the putative employer has the right to control how, when and where the putative employee performs the work; and
(b) the extent to which the putative employee can be seen to be working in their own business as distinct from the putative employer’s business.
14. However, as a cautionary note, in some circumstances the proper analysis may be more nuanced than that. As Gordon J pointed out in Personnel Contracting at [181]-[183] (Steward J agreeing), asking whether a person is working for their own business may not always be a “suitable inquiry for modern working relationships”, given that it may not take much for even a low skilled person to be carrying on their own business. Analysis based on this dichotomy may distract from the relevant underlying analysis of the totality of the relationship created by the contract. It may also direct attention to non-contractual considerations, which are not relevant unless forming part of the contract itself. The better question may be to ask whether, by the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer, so as to maintain the correct focus. That is, if the contract does not lead to the conclusion that the person was working in the business of the asserted employer, then the person will not be an employee. This approach has some traction in this case.”
I will apply these principles as relevant in determining the matter before me.
Consideration
As discussed earlier, I found the Applicant to be a somewhat argumentative and evasive witness. Aspects of his evidence lacked credibility and were self-serving. For example, the claim that Rusty had told him that he would essentially be engaged as a casual despite the Applicant’s own evidence that it was he who sought specifically to be engaged as a contractor having been offered a job as a casual employee. In contrast, Mr. Knight was a responsive witness who was direct in his answers to questions. Where there is any conflict on the evidence, I prefer the evidence of Mr. Knight to that of the Applicant.
While there are some aspects of the evidence that point towards the contractual relationship between the Applicant and the Respondent as one of employment, overwhelmingly the evidence shows that the relationship was one of principal and contractor.
Firstly, it is the Applicant’s own evidence that it was he who expressly sought that he be engaged and paid through his own business, TBB Music Tuition and Artist Services. It was he who sought to be engaged as a contractor and paid on that basis. The actions of the Respondent after that request demonstrate that the Respondent accepted that proposition and engaged the Applicant consistent with that request. The Applicant provided invoices for specific work he performed on events. His remuneration was all derived by way of payments for the invoices provided. No PAYG tax was deducted, and the Applicant was required to make his own taxation arrangements. The Applicant was also not provided any statutory entitlements to leave. The taxation arrangements were also consistent with the apparent desire of the parties to frame the relationship as one of contractor and principal. The Applicant had at the time he was engaged, and still does, have his own business. The Applicant sought and succeeded in having the Respondent engage him through that business. Whether Rusty sought to characterise the relationship as “like a casual” does not alter the position, as it is clear on the Applicant’s own evidence that he expressly sought not to be engaged as a casual. The terms of an oral contract may be able to be inferred from the circumstances, including in whole or in part from the parties conduct or course of dealing between them[24]. It can be inferred from the circumstances set out above, that the terms of the oral contract that applied to the parties was one where the Respondent agreed, as evidenced by its actions set out above, to engage the Applicant as a contractor.
In respect to the extent of control as to how when and where the Applicant performed work, the Applicant’s own evidence was that “staff” (of which he considers himself to be one), were able to carry out the work “as they saw fit”[25]. While there was some direction, it seems the Applicant was free to do the work as he thought best. The objective was to get the job done, be it erect a stage or install the video and lighting, that was the Applicant’s skill set and what he was engaged to do. He exercised a level of autonomy in that regards.
As to when and where the Applicant performed work, it is apparent from the emails supplied[26] that the Applicant was able to accept or reject assignments as he saw fit. Certainly, once an assignment was accepted, it was on a basis that the work was to be performed at a particular place and time, consistent with when and where the concert or relevant event was to be held. As discussed earlier, in 2023 the Applicant was frequently engaged at a number of concerts, at least in the first part of the year.
There was no contractual prohibition on subcontracting the tasks, though given the nature of the work it is unlikely that this would have been practical. However, the Applicant was free to accept those engagements or to work for others. He was not required to work exclusively for the Respondent and the evidence is that he in fact worked elsewhere with the knowledge of the Respondent. While the frequency of the engagements in 2023 may have precluded the Applicant from engagements with other companies, that says little more than the fact that the Respondent had a high demand for the Applicant’s services at that time and the Applicant chose to meet that demand[27].
Some tools of trade were supplied by the Respondent. However, the Applicant supplied his own tools including the podger, a shifter, hi-vis vest, and raincoat. He also used his own vehicle and supplied his own phone. The evidence in terms of supply of tools does not particularly evidence or weigh towards a finding the Applicant was an employee, rather neutral or slightly weighing towards contractor in the circumstances.
As to the extent to which the Applicant was seen to be working in the business of the Respondent, the evidence on this does not extend much further than the polo shirt with the Powa logo which was worn by the Applicant from time to time. There is no evidence that he was required to wear the shirt but chose to do so. However, as was pointed out in EFEX, while presenting as a member of an organisation to clients or customers when viewed through the prism of the now proscribed multifactorial analysis, it says little, let alone anything decisive, about the nature of the legal relationship in place[28].
Taking all the factors into account, the correct characterisation of the relationship between the parties is one of principal and independent contractor, not employer and employee. The email from the Applicant seeking he be engaged as such at the outset, and the subsequent conduct of the Respondent in treating the Applicant as a contractor via the taxation and remuneration arrangements are a significant basis for displacing the indicia of an employment contract. There is overall no significant evidence to suggest that the Applicant was working in the Respondent’s business as opposed to his own business. The lack of any contractual right, and the limited evidence of any actual control of the work of the Applicant are not consistent with a characterisation of the relationship as one of employment.
As an aside, even if the Applicant was an employee, there is no evidence that he was dismissed by the Respondent. That is if he was in fact a casual employee, and it could not be seriously put that he was anything else, then all that happened was he was not offered work on two assignments. The Applicant then, and only then asserted he was an employee. Mr Knight rejected that proposition, but there is no evidence that the Respondent took any action to end the purported employment relationship at least up until the relevant time, which is the time that this application was lodged on 27 February 2024. Therefore, there is no evidence that the Applicant was terminated at the initiative of the Respondent, even if he was an employee, at least prior to the lodging of the application and the application would fail for want of jurisdiction on that basis also. However, I note that the evidence was not fully tested, and this is not a concluded view.
The jurisdictional objection is upheld, and the application will be dismissed.
An order[29] to this effect is issued in conjunction with the publication of this decision.
COMMISSIONER
Appearances:
Mr Adriano Zuccon, Applicant
Mr James Ryan, Representative for the Respondent
Mr Geoffrey Knight, for the Respondent
Hearing details:
21 May 2024.
Melbourne.
[1] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd[2020] FWCFB 5365).
[2] Digital Court Book at page 58.
[3] Ibid at pages 232-237.
[4] PN118-PN119.
[5] Digital Court Book at paragraph 6, page 24 and paragraph 10, page 15.
[6] PN258.
[7] PN265 – PN268.
[8] Digital Court Book at page 198.
[9] PN227-PN228.
[10] Digital Court Book at paragraph 11, page 15 and page 27.
[11] PN325 – 343.
[12] Digital Court Book at paragraph 44, page 27.
[13] PN272.
[14] Digital Court Book at page 23.
[15] Ibid at pages 93-94.
[16] PN134-135.
[17] PN153-156.
[18] Digital Court Book at page 25.
[19] Ibid at page 22.
[20] PN143.
[21] PN178.
[22] Digital Court Book at page 147.
[23] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165.
[24] EFEX Group Pty Ltd v Bennett [2024] FCAFC 35 at [9].
[25] Digital Court Book at page 22.
[26] Ibid at pages 36-52.
[27] ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 at [54]-[55].
[28] EFEX Group Pty Ltd. v Bennett [2024] FCAFC 35 at [42].
[29] PR776310.
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