Mr Andrew Parkinson v Willing and Able Contractors Pty Ltd
[2010] FWA 2135
•15 MARCH 2010
[2010] FWA 2135 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable and Unlawful) termination of employment
v
Willing & Able Contractors Pty Ltd
(U2008/4088 and U2008/4791)
SENIOR DEPUTY PRESIDENT ACTON | MELBOURNE, 15 MARCH 2010 |
Introduction
[1] This matter concerns applications for orders for costs made by Willing & Able Contractors Pty Ltd (Willing & Able) against Mr Andrew Parkinson. The costs’ applications are associated with two applications for relief in respect of the termination of his employment lodged by Mr Parkinson in the Australian Industrial Relations Commission (the Commission) under s.643(1) of the Workplace Relations Act 1996 (Cth) (the WR Act). The s.643(1) applications cited Willing & Able and Inghams Enterprises Pty Ltd as respondents to the applications. As a result, four s.643(1) applications were regarded as having been lodged in the Commission by Mr Parkinson, being U2008/4087: Parkinson v Inghams Enterprises Pty Ltd and U2008/4088: Parkinson v Willing & Able Contractors Pty Ltd lodged on 13 May 2008 and U2008/4790: Parkinson v Inghams Enterprises Pty Ltd and U2008/4791: Parkinson v Willing & Able Contractors Pty Ltd which were lodged on 25 June 2008. The history of the applications lodged against Willing & Able is relevant to the costs’ applications, as are the facts surrounding his engagement. I turn then to deal with the history of Mr Parkinson’s applications against Willing & Able, before dealing with the facts surrounding his engagement and determining his costs’ applications.
U2008/4088
[2] As just indicated, matter U2008/4088 is an application lodged by Mr Parkinson in the Commission on 13 May 2008, under s.643(1)(c) of the WR Act, seeking relief in relation to the termination of his employment by Willing & Able. In the application, Mr Parkinson alleged the termination of his employment was harsh, unjust or unreasonable and unlawful in that it contravened s.659 of the WR Act. A notice of listing for a conciliation before the Commission on 30 May 2008 in respect of the application was sent to the parties on 15 May 2008.
[3] On 22 May 2008, Willing & Able lodged a Notice of Employer’s Appearance in relation to the application. In that Notice, Willing & Able advised that Mr Parkinson provided services to Willing & Able as a sub-contractor. Willing & Able also lodged a Notice of Motion to Dismiss the Application for Want of Jurisdiction on the basis that Mr Parkinson was a sub-contractor and not an employee of Willing & Able.
[4] On 28 May 2008, Mr Parkinson lodged a Notice of Discontinuance in the matter, stating he was discontinuing the matter with the Commission due to ill health.
[5] The matter was subsequently the subject of a conciliation before the Commission on 24 July 2008 and a certificate under s.650 of the WR Act was issued on 25 July 2008. The s.650 certificate indicated that all reasonable attempts to settle the matter by conciliation had been, or were likely to be, unsuccessful in respect of the grounds of the application alleging the termination was harsh, unjust or unreasonable and unlawful in that it contravened s.659 of the WR Act. The certificate stated:
“
• In relation to the s.643(1)(a) ground, subject to jurisdiction, the determination of the application will depend on evidence and findings on the evidence as to the applicant’s conduct and interaction with other workers;
• In relation to the s.659 ground, subject to jurisdiction, the determination of the application will depend on evidence and findings on the evidence as to the reason/s for termination. In the course of the conciliation, the proposition that discriminatory grounds were relied upon was based wholly on the proposition that no valid reason for termination existed. On the basis of what was put in the course of the conciliation, it is my assessment that that applicant has no prospect of succeeding in arbitration or this ground”.
[6] On 1 August 2008, pursuant to s.651 of the WR Act Mr Parkinson elected to proceed to arbitration of the matter in the Commission on the grounds the termination of his employment was harsh, unjust or unreasonable and also elected to begin proceedings in a court of competent jurisdiction for an order in respect of an alleged contravention of s.661 of the WR Act. Mr Parkinson’s s.643(1)(c) application had not alleged a contravention of s.661 of the WR Act.
U2008/4791
[7] Matter U2008/4791 is an application lodged by Mr Parkinson in the Commission on 25 June 2008, under s.643(1)(c) of the WR Act, seeking relief in relation to the termination of his employment by Willing & Able on the grounds the termination was harsh, unjust or unreasonable and unlawful in that it contravened ss.659, 660 and 661 of the WR Act. On the front page of the application where the applicant is made aware an application cannot be made on the ground the termination was harsh, unjust or unreasonable if the employer has 100 employees or fewer, Mr Parkinson made a handwritten reference to the “Corporations Act 2001” and “corporate control”.
[8] On 18 July 2008, Willing & Able lodged a Notice of Employer’s Appearance in relation to the application. In that Notice, Willing & Able advised that Mr Parkinson provided services to Willing & Able as a sub-contractor and that it employed less than 100 employees and “as such [Mr Parkinson] is not entitled to make a claim for unfair dismissal.” Willing & Able also lodged a Notice of Motion to Dismiss the Application for Want of Jurisdiction on the basis that Mr Parkinson was a sub-contractor and not an employee of Willing & Able.
[9] The matter was subsequently the subject of jurisdictional proceedings and a conciliation before the Commission on 24 July 2008. The jurisdictional proceedings concerned the lodgement of a second application for relief in relation to the termination of employment and whether or not time should be extended for the lodgement of the second application. As part of these proceedings Willing & Able again objected on the basis that it had less than 100 employees. 1 The conciliation resulted from the Commission suggesting an adjournment of the jurisdictional proceedings before their conclusion and a conciliation of matters U2008/4088 and U2008/4791. A certificate under s.650 of the WR Act was issued on 25 July 2008. The s.650 certificate indicated that all reasonable attempts to settle the matter by conciliation had been, or were likely to be, unsuccessful in respect of each of the grounds on which the application had been made. The certificate stated:
“
• In relation to the s.643(1)(a) ground, subject to jurisdiction, the determination of the application will depend on evidence and findings on the evidence as to the applicant’s conduct and interaction with other workers;
• In relation to the s.659 ground, subject to jurisdiction, the determination of the application will depend on evidence and findings on the evidence as to the reason/s for termination. In the course of the conciliation, the proposition that discriminatory grounds were relied upon was based wholly on the proposition that no valid reason for termination existed. On the basis of what was put in the course of the conciliation, it is my assessment that that applicant has no prospect of succeeding in arbitration or this ground; and
• There was no discussion of the other grounds for the application in conciliation. In this circumstance, it is not possible to make an assessment of the merits in relation to these grounds.”
[10] On 22 August 2008, Mr Parkinson elected to proceed to arbitration of the matter in the Commission on the ground the termination of his employment was harsh, unjust or unreasonable and he also elected to begin proceedings in a court of competent jurisdiction for an order in respect of an alleged contravention of s.661 of the WR Act.
Notice of Listing
[11] On 27 August 2008, a notice of listing of matters U2008/4087, U2008/4088, U2008/4790 and U2008/4791 for hearing before the Commission on 16 October 2008 was sent to the parties. Directions were attached to the notice requiring Mr Parkinson to file and serve by close of business on 12 September 2008 the written submissions, witness statements and other evidence on which he intended to rely in respect of the merits of his applications and his extension of time applications. The directions also required Willing & Able to file and serve by close of business on 26 September 2008 the written submissions, witness statements and other evidence on which it intended to rely in respect of the merits of the applications, the extension of time applications and any of its jurisdictional objections.
[12] The parties complied with these directions. In his written outline of submissions dated 11 September 2008, in respect of matters U2008/4088 and U2008/4791, Mr Parkinson said:
“Valid Application
1. It is submitted that the Application in respect of matter U2008/4088 was made on 13 May 2008 in respect to a termination of Applicant’s employment by the Respondent on 23 April 2008 in compliance with section 643(14) of the Workplace Relations Act 1996 (the Act).
2. The grounds alleged in this application were that the termination was harsh, unjust and unreasonable and that the termination contravened s.659 of the Act.
3. A further Application was made on 25 June 2008 and subsequently identified as matter U2008/4791.
4. The second application is a valid application as it amends the Application made on 13 May 2008 and alleges that the termination contravened s.661 of the Act.
5. The second application also erroneously alleged a contravention of s.660 of the Act. The application for relief in respect of this ground is hereby withdrawn.
6. Further the first application alleged that the termination was a contravention of s643, however the Applicant now admits that the Respondent does not employ 100 employees and therefore withdraws its application on this ground for want of jurisdiction.
Employee of Willing Able Pty Ltd
7. The Respondent was at all material times a constitutional corporation.
8. It is submitted that the Applicant believes at all material times the he was employed by Inghams Enterprises Pty Ltd (Inghams) but if the Commission should find against the Applicant following a hearing in respect to matter numbers U2008/4087 and U2008/4790 it is submitted in the alternative that the Applicant was employed, or usually employed by the Respondent at all material times.
9. The Applicant is not a bona fide independent contractor who did not wish to be bound by the constraints of the wages system but was induced into entering into a sham arrangement in order to work for and on behalf of the Respondent…
10. The enquiry about the existence of a contract of employment or an independent contractual relationship permits the Tribunal characterise [sic] a contractual relationship dealing with work as a contract of employment, and to eschew unrealistic descriptions of employees as independent contractors when the facts of a case disclose the contrary: see Hollis v Vabu Pty Limited (2001) 207 CLR 21 at [47] to [57].
Dismissal Contrary to a Prohibited Reason
11. The Applicant made requests of Inghams’ Safety Officer to be the Occupational Health and Safety Representative for the maintenance team that works on Inghams’ Somerville site in early February 2008.
12. In early March, the Applicant made enquiries with the Australian Taxation Office and an Accountant in respect of his rights to be paid superannuation given the manner of his employment and then asked both the Respondent and Inghams to be paid superannuation.
13. Subsequent these enquires the Applicant was refused access to Inghams’
Somerville site on or about 23 April 2008 contrary to s659 of the Act.
Failure to Give Adequate Notice
14. The Applicant is not guilty of serious misconduct and did not receive adequate notice prior to being constructively dismissed by being refused access to Inghams’ Somerville site.
Relief Sought
15. The Applicant seeks an order for reinstatement.
16. In lieu of an order for reinstatement the Applicant seeks an order for damages.”
[13] The hearing for 16 October 2008 was cancelled on 27 August 2008 and the matters were relisted for 10 October 2008.
Notices of Discontinuance
[14] On 3 October 2008, Mr Parkinson lodged a Notice of Discontinuance in matters U2008/4088 and U2008/4791, wholly discontinuing the matters within the Commission. On 9 October 2008, Willing & Able filed an application for an order for costs in the matters. On 10 October 2008, Mr Parkinson lodged another Notice of Discontinuance in the matters, wholly discontinuing them. On 4 March 2009, Willing & Able filed another application for an order for costs in the matters.
[15] The circumstances which led to Mr Parkinson lodging another Notice of Discontinuance in the matters on 10 October 2008 are evident from the beginning of the transcript of the proceedings on that day. The relevant part of the transcript is as follows:
“PN1
MR D BENNETT: I appear as a friend of the court on behalf of Mr Parkinson.
PN2
MR C POLLARD: I appear for Jones Ross on behalf of Inghams Enterprises Pty Ltd.
PN3
MR G DEVRIES: I appear as counsel for Willing and Able.
PN4
THE SENIOR DEPUTY PRESIDENT: Are you seeking leave to intervene, Mr Devries?
PN5
MR DEVRIES: I am, your Honour. But before I get that far, I understand that our matters have also been listed today. They were in the list that was published last night.
PN6
THE SENIOR DEPUTY PRESIDENT: Were they? Yes. That's probably an inadvertence on our behalf. The matters have been discontinued against Willing and Able.
PN7
MR DEVRIES: Well, with great respect, your Honour, the notice of discontinuance in each case is a qualified notice of discontinuance. My instructors have also lodged an application for costs in those matters. But because of the past history of this matter and because of previous notices of discontinuance which were sought to be set aside we're not sure what the situation is with respect to our matters. One reason we're here is to try to find out what Mr Parkinson's notice of discontinuance really means. And secondly, I do seek to intervene in the other matter because my client has a very, very strong interest in the outcome of that because it still relates to the relationship between my client.
PN8
THE SENIOR DEPUTY PRESIDENT: Perhaps we can try and clear up whether the matters are totally discontinued against Willing and Able.
PN9
MR DEVRIES: The notices both say discontinued in the AIRC. It begs the question, is the intention of Mr Parkinson when this matter is over to then re-elect or to put in another notice of election out of time, seek an extension of time to take the matter to the Federal Court or the federal Magistrates' Court, or does he mean something else? Given that on 28 May he discontinued 4791 of 2008 and said one thing and then later on said something else, and then sought to reinstate the matter the last time we were before your Honour, we just don't know what Mr Parkinson is doing or not doing. So I'd request your Honour to treat the two matters involving us as at least listed for mention today so that we can clarify exactly where my client stands.
PN10
THE SENIOR DEPUTY PRESIDENT: Well, Mr Bennett, as I understand it you're appearing for Mr Parkinson?
PN11
MR BENNETT: Yes. Just to clarify, Mr Parkinson sought some assistance from other sources of funding to, you know, fund his representation, which to this date he hasn't been successful in obtaining, so I'm appearing here pro bono at Mr Parkinson's request, given I did some work on the matter to prepare some arguments a few weeks ago. With respect to the discontinuance, my instructions are that the intention is to fully discontinue against the party Willing and Able in this matter, that's Mr Parkinson's intention.
PN12
THE SENIOR DEPUTY PRESIDENT: All right, so he's fully discontinued against Willing and Able?
PN13
MR BENNETT: Yes, that's correct.
PN14
THE SENIOR DEPUTY PRESIDENT: Does that clarify it for you, Mr Devries?
PN15
MR DEVRIES: We prefer to see that in a proper notice of discontinuance as well signed by Mr Parkinson. And can I just say, your Honour, with the greatest respect to Mr Bennett, appearing pro bono for somebody doesn't make them a friend of the Court. He is still Mr Parkinson's legal representative. It's just that this stage he's not being paid. I'm sympathetic to people appearing who aren't being paid, but it doesn't make him a friend of the court, with respect, your Honour.
PN16
THE SENIOR DEPUTY PRESIDENT: Certainly. Mr Bennett, is your client willing to sign another notice of discontinuance?
PN17
MR BENNETT: I don't think there will be a problem with that.
PN18
THE SENIOR DEPUTY PRESIDENT: Mr Parkinson, you need to speak to Mr Bennett.
PN19
MR DEVRIES: Unfortunately, your Honour, I couldn't help but overhear something from the other end of the bar table. I get the impression Mr Parkinson still thinks it's open for him to take an unlawful termination application against my client. If that's the case then perhaps it's a still not qualified notice of discontinuance.
PN20
THE SENIOR DEPUTY PRESIDENT: Mr Bennett?
PN21
MR BENNETT: Mr Parkinson's withdrawn.
PN22
THE SENIOR DEPUTY PRESIDENT: Withdrawn completely?
PN23
MR PARKINSON: This is for unlawful dismissal, yes. All right, yes, unfair and unlawful dismissal, I withdraw my - against Willing and Able.
PN24
THE SENIOR DEPUTY PRESIDENT: Mr Bennett, what's the position?
PN25
MR BENNETT: That's my instructions.
PN26
THE SENIOR DEPUTY PRESIDENT: What are your instructions, Mr Bennett?
PN27
MR BENNETT: That Mr Parkinson has withdrawn unconditionally.
PN28
THE SENIOR DEPUTY PRESIDENT: Against Willing and Able?
PN29
MR BENNETT: Against Willing and Able.
PN30
MR DEVRIES: I accept my learned friend's - - -
PN31
THE SENIOR DEPUTY PRESIDENT: I'll arrange for you to get copies, for all parties to get copies of those.
PN32
MR DEVRIES: Your Honour, unfortunately it doesn't end those matters because my instructors filed an application for costs in those matters yesterday by fax or email, and I'll be, with respect, pressing your Honour to timetable that matter once the other matters are determined in some shape or form.
PN33
THE SENIOR DEPUTY PRESIDENT: Yes. Well, we'll come to the costs issue in due course.
PN34
MR DEVRIES: I'm just flagging it at the moment.
PN35
THE SENIOR DEPUTY PRESIDENT: But as I understand it you still wish to intervene in the matters against Inghams?
PN36
MR DEVRIES: I do, your Honour.
PN37
THE SENIOR DEPUTY PRESIDENT: Any objection to the application for leave to intervene? Leave is granted.”
[16] I will now deal with the facts surrounding Mr Parkinson’s engagement. These facts are derived from the material before the Commission in the proceedings concerning Willing & Able and/or Inghams. Proceedings in respect of which Willing & Able seeks costs. The facts are relevant because from them can be ascertained what Mr Parkinson was or should have been aware of at the time he made his applications and pursued proceedings.
Facts surrounding Mr Parkinson’s engagement
(a) Engagement
[17] Willing & Able is, in part, a labour hire company. 2 It was set up in 1989. In 1989, Mr Wayne Burhop, the Director of and a shareholder in Willing & Able, was working at Inghams as the sub-contractor Willing & Able doing maintenance for a contractor at Inghams. The contractor eventually moved on but Willing & Able stayed at Inghams. As Inghams got busier, more maintenance workers were needed and Mr Burhop trading as Willing & Able told Inghams that Willing & Able could get more maintenance workers to help out. Since then Willing & Able has had a verbal arrangement with Inghams whereby if Inghams notifies Willing & Able that they require extra maintenance workers, Willing & Able puts an advertisement in the local newspaper for workers. Mr Burhop does not ask those who respond to the advertisement for their qualifications or resumé because they are tried out and if they cannot do the job that is picked up by the Willing & Able supervisors at Inghams and they are not asked to return.3
[18] In or around October 2004, Willing & Able placed the following advertisement in a newspaper:
“MAINTENANCE FITTER
Sub-Contractor, Sat only, 8-10 hrs p/week in Somerville area.
Exp essential. [mobile telephone number provided]” 4
[19] Mr Parkinson, who is a qualified boilermaker and has attained further qualifications to the level of Engineering Associate, saw the advertisement, telephoned the number in the advertisement and spoke to Mr Burhop. Mr Burhop told Mr Parkinson to go to the Inghams’ gatehouse in Grant Road, Somerville on Saturday at 6.00 a.m. and someone would meet him. He also told Mr Parkinson he needed to give Mr Burhop an Australian Business Number (ABN) and his bank account details. 5
[20] Mr Parkinson attended at Ingham’s gatehouse on 23 October 2004 and was met by Mr Mohan Nagaratnam. Mr Nagaratnam is employed by Inghams as a maintenance co-ordinator. Mr Parkinson told Mr Nagaratnam he had been told to turn up if he wanted a job. Mr Nagaratnam asked Mr Parkinson who he had spoken to and, when he told him, Mr Nagaratnam said to Mr Parkinson words to the effect of “you must be Willing & Able”. 6 Mr Nagaratnam also told Mr Parkinson that they would give him a list of jobs to do and Mr Parkinson would need to fill in a timesheet to get paid.7 The header to the timesheet8 was as follows:
“Contractor Hours
Contractor Company name: Willing & Able Employee name: ”
[21] Mr Parkinson continued to work on maintenance type work at Inghams on weekends. Between January and March 2006, Mr Parkinson was offered additional work by Willing & Able which he undertook at a site managed by Baiada Poultry Pty Limited in Nagambie and at a non-Inghams site in Laverton. 9
[22] In April 2006, Mr Parkinson began working full-time in the module repair shop at Inghams following a discussion between himself and Mr Burhop. 10 In June 2006, following a discussion between Mr Parkinson and Mr Anthony Huther, a sub-contractor engaged by Willing & Able at Inghams, Mr Parkinson’s work at Inghams changed to include working on specific projects, providing support to independent contractors, filling in for people who were absent and monitoring and maintaining a boiler.11
[23] In February 2007, at the request of Mr Parkinson, Ms Joanne Chapman, an officer and shareholder in Willing & Able and also the Accounts and Operations Manager for Willing & Able, wrote the following letter on Willing & Able letterhead:
“To whom it may concern,
Please be advised that Andrew Parkinson has worked as a sub-contractor for our company for approx 3 years, and will continue to do so in the future.
In January 2006 he began working on a more regular/permanent basis for us and his weekly payment has been an average over $1700 per week plus GST.
If you would like to confirm this information verbally, please do not hesitate to contact me.
Kind Regards
[Signed]
Joanne Chapman
Accounts & Operations Manager
Willing & Able Contractors Pty Ltd” 12
[24] In August 2007, Mr Parkinson’s work at Inghams again changed to include supporting the site occupational health and safety co-ordinator. 13 In December 2007, Mr Parkinson was asked by Mr Trevor Rust, the Plant Engineer at Inghams, to complete the commissioning of a new conveyor network and to develop its maintenance routine.14
[25] From November 2007 to February 2008, Mr Parkinson also did a lot of weekend work at Inghams and had a discussion with Mr Burhop about being paid at the proper overtime rate. 15
[26] In or around March 2008, Mr Parkinson spoke to Mr Rust about superannuation payments. Mr Rust told Mr Parkinson it was not his problem as Mr Parkinson worked for Willing & Able. Mr Parkinson also asked Mr Rust for a 10% pay increase and for his position to be recognised. 16 Subsequently, Mr Nagaratnam offered Mr Parkinson a position as a maintenance worker on the afternoon shift at Inghams but Mr Parkinson declined it.17 Mr Parkinson also spoke to Mr Burhop about superannuation payments.18
[27] During the period Mr Parkinson worked at Inghams, the major equipment for Mr Parkinson’s work was supplied by Inghams, Mr Parkinson was given a security key allowing him access to restricted areas of the Inghams’ plant, Mr Parkinson was given and wore uniforms with the Inghams’ logo and his name monogrammed on them and Mr Parkinson parked in the carpark for Inghams’ employees.
[28] In or around late April 2008, Mr Burhop told Mr Parkinson that Inghams did not want him on the site. Mr Parkinson’s work at Inghams then came to an end. This led to Mr Burhop offering Mr Parkinson work elsewhere at sites not operated by Inghams. 19
(b) Training
[29] While he worked at Inghams, Mr Parkinson received various forms of training. A record of his training is set out in a document entitled “Inghams Enterprises Pty Limited Standard Operating Procedures Employee Training History Card”. Near that title the words “Willing & Able” are written. The document shows the various types of training Mr Parkinson received throughout the period he worked at Inghams including induction, repair/maintenance, occupational health and safety and forklift training. The document suggests Mr Parkinson received induction training for contractors in October 2007 but there is no signature of his on the document to the effect that he did receive such training. 20 When Mr Parkinson did the induction training at Inghams in November 2004, he signed a statement21 as follows:
“I Andrew Parkinson a contractor of Inghams at the Somerville Processing Plant have read and understood the above notices from induction Module booklet SEP 04.
(Signed Employee) [Signed] ”
[30] In February 2007, Mr Parkinson signed an Inghams’ Occupational Health and Safety Management System Duty Statement setting out occupational health and safety obligations for Inghams’ employees. 22
[31] Inghams provides training for all who work at its site for occupational health and safety reasons. 23
(c) Payment
[32] Inghams has about 600-650 persons on its payroll for the site at which Mr Parkinson worked. 24 It has about 3,300 persons on its southern states payrolls.25 Mr Parkinson was not on the Inghams’ payrolls.26
[33] Over the period Mr Parkinson worked at Inghams he completed timesheets, as earlier set out, showing the number of hours he worked each day. 27 Inghams provided the details of the hours worked by Mr Parkinson to Willing & Able on a regular basis. Similar details were provided to Mr Parkinson. Willing & Able paid Mr Parkinson for the hours he worked based on the details provided by Inghams. Mr Parkinson subsequently issued tax invoices to Willing & Able setting out his ABN, the hours he had worked, the rate per hour and the total amount owed to him, including from around mid 2006 goods and services tax (GST), for the hours worked. Willing & Able sought outstanding tax invoices from Mr Parkinson.
[34] In February 2007, Mr Parkinson received a typed note from Ms Chapman which was as follows:
“Hi Everyone,
Here are the dates that we will be paying through Tower Plumbing for this year. Please ensure that your invoices are made out to Tower Pluming and NOT Willing & Able for these weeks. All invoices are still to be mailed to Willing & Able. Please remember that because they are being done through Tower, your pays may take a day longer to come through, but should still be there by Thursday each week. Weeks ending Saturday: 24th Feb, 3rd March, 10th March, 17th March, 14th April, 21st April, 28th April, 26th May, 2nd June, 9th June and 16th June.
Any questions, please call me
JO” 28
[35] Written on the typed note was the following:
“Andrew
We pay through Tower Plumbing for 11 weeks each year for the permanent guys so you can still claim on your tax as a subcontractor – You can’t work more than 80% of the year for one person if you are a subbie.
Jo.” 29
[36] On a regular basis, Willing & Able issued a tax invoice to Inghams setting out the total amount owed to it, including GST, for the hours worked by Mr Parkinson and others over the period. 30 The Willing & Able tax invoice to Inghams was based on a purchase order Inghams had sent it. The purchase order was based on the timesheets completed by Mr Parkinson and others checked against swipe card data, with such data being collected from those working at Inghams signing on at the commencement of their shift and signing off at the conclusion of their shift using a swipe card provided by Inghams.31
[37] For example, on 28 March 2008, Willing & Able issued a tax invoice to Inghams for the week ending 28 March 2008 for 224.25 “ordinary” hours, 91.6 “overtime” hours, 37.25 “shift” hours, 80.5 “public holiday” hours and 24 “supervisor” hours. Willing & Able sought payment from Inghams within seven days of the date of the invoice. An electronic deposit record provided to Mr Parkinson by Willing & Able dated 31 March 2008 showed that for the week ending 29 March 2008 Willing & Able had paid Mr Parkinson for 35 “normal” hours, 6 “overtime” hours and 8 “public holiday” hours. The rates contained in the Willing & Able invoice to Inghams for the “ordinary”, “overtime” and “public holiday” hours provided in the week ending 28 March 2008 were considerably higher than the rates they paid to Mr Parkinson for the “normal”, “overtime” and “public holiday” hours he worked at Inghams in the week ending 29 March 2008. 32
[38] There does not appear to have been much discussion about the amount Mr Parkinson was paid. Willing & Able decided the rates Mr Parkinson was paid. 33 By and large Mr Parkinson just invoiced Willing & Able for what it had already paid to him. Although, on the invoice Mr Parkinson sent to Willing & Able for the week ending 8 December 2007, Mr Parkinson wrote a note to Ms Chapman asking if they could discuss the overtime rate soon. Similarly, in his invoice to Willing & Able for the week ending 12 January 2008, Mr Parkinson asked Ms Chapman if she could get Mr Burhop to call him at home regarding overtime rates.34
[39] In or around late 2007 to early 2008, Mr Parkinson had a discussion with Mr Burhop about being paid the proper overtime rate and Mr Parkinson was told by Mr Burhop that he could not do anything because he was only passing on what he was being paid by Inghams and he had no margin to share. 35 In or around March 2008, Mr Parkinson asked Inghams for a pay increase.36 Around March 2008, Mr Parkinson was being paid $38.33 including GST per hour for “normal” hours, $40.59 including GST per hour for “overtime” hours and $45.03 including GST per hour for “public holiday” hours.37 Mr Parkinson had been on these rates since early July 2007 and remained on those rates up to his work at Inghams coming to an end. The price Willing & Able invoiced Inghams for such hours was considerably higher than these amounts.38
[40] On the invoice Mr Parkinson sent to Willing & Able for the week ending 24 November 2007, Mr Parkinson told Ms Chapman that he would be needing holidays at Christmas if that was “OK” and asked her to call him. 39 For the week ending 19 January 2008, Mr Parkinson only claimed and was only paid for 10 “overtime” hours.40
[41] In March 2008, Mr Parkinson sought and received advice from his accountant regarding the superannuation obligations of a labour hire company in respect of a worker in receipt of payments under a labour hire arrangement. 41 Mr Parkinson then raised the matter with Inghams and was told it was not their problem as he worked for Willing & Able. Mr Parkinson also spoke to Mr Burhop about the matter and was told that superannuation was included in the amount he was paid and that Inghams controlled everything including rates of pay.42
(d) Taxation arrangements
[42] In 2005, Mr Parkinson submitted a Business and professional items schedule for individuals for the financial year 2004/2005 to the Australian Taxation Office (ATO). In it he indicated he had received personal services income from labour hire or other specified payments. He also described his main business or professional activity as mechanical maintenance, welding, forklift work and labour hire. 43
[43] In at least 2006, 2007 and 2008 Mr Parkinson submitted to the ATO Business Activity Statements (BAS) for a business named Sontech Solar with an ABN the same as that he had provided to Willing & Able. The BAS reported money he had received for his work at Inghams. 44
[44] In 2007, Mr Parkinson submitted an Individual tax return for the financial year 2006/2007 to the ATO. The return indicated he had received no personal services income, his main business or professional activity was “Welding nec” and he was engaged in only one business activity, the business name of the main business was “Andrew Charles Parkinson”, its ABN was the same as that he had provided to Willing & Able and the business address of his main business was his residential address. He claimed depreciation, motor vehicle and other expenses. The depreciation expenses concerned two welders, a grinder, an oxy set, loose tools, a chainsaw, a box trailer, two computers and a telephone. 45 Although, before the Commission, Mr Parkinson said he had never earned any income from his Tigwell welder.46
Bases of Costs’ Applications and Consideration
[45] Willing & Able’s applications for an order for costs are made pursuant to ss.658(1), (2) and (3) of the WR Act.
[46] Section 658 relevantly provides as follows:
658 Commission may order payment of costs
(1) If the Commission is satisfied:
(a) that a person (first party):
(i) made an application under section 643; or
(ii) began proceedings relating to an application; and
(b) the first party did so in circumstances where it should have been reasonably apparent to the first party that he or she had no reasonable prospect of success in relation to the application or proceeding;
the Commission may, on application under this section by the other party to the application or proceeding, make an order for costs against the first party.
(2) If the Commission is satisfied that a party (first party) to a proceeding relating to an application under section 643 has acted unreasonably in failing:
(a) to discontinue the proceeding; or
(b) to agree to terms of settlement that could lead to the discontinuance of the application;
the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first party.
(3) If the Commission is satisfied:
(a) that a party (first party) to a proceeding relating to an application made under section 643 caused costs to be incurred by the other party to the proceeding; and
(b) that the first party caused the costs to be incurred because of the first party’s unreasonable act or omission in connection with the conduct of the proceeding;
the Commission may, on an application by the other party under this section, make an order for costs against the first party…
(5) In making a decision under this section, the Commission may have regard to any certificate issued or advice given under section 650 and whether a party pursued a course of action contrary to any such certificate or advice.
(6) An application for an order for costs under this section must be made within 14 days after the determination, discontinuance, settlement or dismissal of the application under section 643 or proceeding relating to an application under section 643 (as the case may be).
(7) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in respect of:
(a) an application to the Commission under section 643; and
(b) a proceeding in respect of an application under section 643.
(8) Without limiting, by implication, the generality of the items of expenditure for which the schedule may provide, those items may include:
(a) legal and professional costs and disbursements; and
(b) expenses arising from the representation of a party by a person or organisation other than on a legal professional basis; and
(c) expenses of witnesses.
(9) If a schedule of costs is prescribed for the purposes of subsection (7), then, in awarding costs under this section, the Commission:
(a) is not limited to the items of expenditure appearing in the schedule; but
(b) if an item does appear in the schedule—must not award costs in respect of that item at a rate or of an amount in excess of the rate or amount appearing in the schedule.
(10) For the purposes of this section, the following proceedings are examples of proceedings relating to an application under section 643 in respect of which the Commission may make an order for costs:
(a) a proceeding for dismissal of an application under section 643 on the ground that the application is outside jurisdiction;
(b) conciliation proceedings under section 650;
(c) arbitration proceedings under section 652;
(d) an appeal to the Full Bench from an order of the Commission under section 654 or a costs order under section 658;
(e) a proceeding concerning an application for costs by one party in respect of another party’s application for costs.
[47] I turn firstly to deal with Willing & Able’s costs’ applications based on s.658(1) of the WR Act.
[48] I am satisfied Mr Parkinson made applications under s.643 on 13 May 2008 and 25 June 2008 against Willing & Able. I am also satisfied that he began proceedings relating to the applications in that proceedings before the Commission were listed from 30 May 2008.
[49] However, I am not satisfied that Mr Parkinson made the applications or began proceedings up to 1 August 2008, when he elected to proceed to arbitration, in circumstances where it should have been reasonably apparent to him that he had no reasonable prospects of success in relation to the applications or proceedings.
[50] I have come to this view for the following reasons:
- I think it is and was arguable that Mr Parkinson was an employee of Willing & Able, given the facts surrounding Mr Parkinson’s engagement.
- Mr Parkinson’s first s.643 application against Willing & Able was discontinued on 28 May 2008 due to ill health. His second and late s.643 application against Willing & Able was made in circumstances where there were Certificates of Capacity indicating Mr Parkinson’s unfitness for duty from 5 May to at least 19 May 2008 47 and a letter dated 6 June 2008 confirming an appointment for him with a psychiatrist on 10 July 2008,48 which letter resulted from an earlier referral letter by his general medical practitioner and Mr Parkinson seeking an appointment with the psychiatrist.49 These tend to indicate Mr Parkinson was ill around the end of May 2008. As a result, it could not be said Mr Parkinson had no reasonable prospects of success in having his second s.643 application accepted by the Commission.
- Mr Parkinson’s s.643 applications of 13 May 2008 and 25 June 2008 alleged the termination of his employment by Willing & Able was not only unfair but also a breach of the WR Act. Willing & Able did not raise their jurisdictional objection to Mr Parkinson’s applications based on them having less than 101 employees until 18 July 2008. Mr Parkinson was not precluded by the number of employees Willing & Able employed from making and pursuing his applications on the grounds the termination of his employment was unlawful. Further, the conciliation on 24 July 2008 resulted from the Commission suggesting an adjournment of the jurisdictional proceedings involving Mr Parkinson’s second application under s.673 of the WR Act and his extension of time application and a conciliation of his applications.
[51] On 1 and 22 August 2008, Mr Parkinson elected to proceed to the arbitration of his applications U2008/4088 and U2008/4791 respectively, to the extent they were made on the ground the termination of his employment was harsh, unjust or unreasonable. At this point in time, Mr Parkinson was not only on notice from Willing & Able that it had less than 101 employees and Mr Parkinson was thereby excluded from making an unfair dismissal application under the WR Act, but he had also had proceedings before the Commission at which Willing & Able pressed the issue and a conciliation resulting in a s.650 certificate noting the ground was subject to jurisdiction. However, Mr Parkinson only withdrew his applications made on the ground the termination was harsh, unjust or unreasonable on 11 September 2008 in his written outline of submissions. He can be criticised for failing until October 2008 to regularise the withdrawal through Notices of Discontinuance. Nonetheless I think his withdrawal of that part of his applications from 11 September 2008 was otherwise clear. Accordingly, I am satisfied that from 1 August to 11 September 2008 Mr Parkinson began proceedings relating to his applications in circumstances where it should have been reasonably apparent to him that he had no reasonable prospects of success in relation to the proceedings.
[52] In the exercise of my discretion, however, I decline to make an order for costs against Mr Parkinson under s.658(1). This is because from 10 October 2008 Willing & Able participated in proceedings Mr Parkinson had against Inghams as an intervener in the proceedings. While some minor legal practitioner/client costs incurred by Willing & Able were lost from 1 August 2008, the significant costs incurred by Willing & Able prior to 10 October 2008 were not lost as work done in connection with matters U2008/4088 and U2008/4791 was used in respect of the proceedings Mr Parkinson had against Inghams. For example, in the proceedings Mr Parkinson had against Inghams, Inghams called Ms Chapman and Mr Burhop of Willing & Able as witnesses and tendered the witness statements of Ms Chapman and Mr Burhop that Willing & Able had filed in the Commission in matters U2008/4088 and U2008/4791 before 10 October 2008.
[53] I now turn to Willing & Able’s costs’ applications based on s.658(2) of the WR Act.
[54] There is nothing before me to suggest that Mr Parkinson acted unreasonably in failing to agree to terms of settlement that could lead to the discontinuance of his applications against Willing & Able. Nor am I satisfied Mr Parkinson acted unreasonably in failing to discontinue any proceedings in respect of his applications, other than the arbitration proceedings. I have already indicated that I think it is and was arguable that Mr Parkinson was an employee of Willing & Able. Further, I am satisfied his ill health prevented him proceeding with the conciliation on 30 May 2008. I am not satisfied it was unreasonable for Mr Parkinson to lodge a second s.643 application against Willing & Able given the circumstances in which he discontinued his first application against Willing & Able. Therefore I am of the view that Mr Parkinson did not act unreasonably in failing to discontinue the jurisdictional proceedings of 24 July 2008. The conciliation on 24 July 2008 resulted from the Commission suggesting an adjournment of the jurisdictional proceedings before their conclusion and a conciliation of his applications. However, I am satisfied Mr Parkinson acted unreasonably in failing to discontinue the arbitration proceedings relating to his s.643 applications earlier than he did. I am so satisfied bearing in mind that he had been advised by Willing & Able on 18 July 2008 that they had less than 101 employees so he was unable to make an unfair dismissal application against them and also bearing in mind the issue was pressed by Willing & Able at the jurisdictional proceedings on 24 July 2008 and given the content of the s.650 certificates of 25 July 2008.
[55] Nonetheless, for the reasons I have earlier given in considering Willing & Able’s costs’ applications under s.658(1) of the WR Act, in the exercise of my discretion I decline to make an order for costs against Mr Parkinson under s.658(2) of the WR Act.
[56] I finally turn to Willing & Able’s costs’ applications based on s.658(3) of the WR Act. I am satisfied Mr Parkinson caused costs to be incurred by Willing & Able in respect of proceedings relating to his s.643 applications. However, I am not satisfied he caused the costs to be incurred because of any unreasonable act or omission connected with the conduct of the proceedings.
[57] In Barbaro v Certegy Australia PLC, 50 a Full Bench said of s.170CJ(3) of the then WR Act, which was in the same terms as s.658(3):
“[27] Finally, we did not believe Mr Barbaro's lodging of the appeal or decision to proceed with it were unreasonable acts given the facts apparent to him at the relevant times. In our view, in order to attract s.170CJ(3) a party must perform an unreasonable act or unreasonably omit to do something in connection with a proceeding that has already been instituted. The mere making of the appeal or its prosecution does not attract s.170CJ(3). Had either of those acts been unreasonable s.170CJ(1) or (2) would have been attracted. We have already found that not to be the case.
[28] In light of this, we concluded Certegy's claim for costs under s.170CJ(3), in relation to Mr Barbaro's causing of appeal costs to be incurred by Certegy, must similarly fail.”
[58] Mr Parkinson’s failure to proceed with the conciliation on 30 May 2008 due to ill health was not unreasonable. There was no act or omission connected with the conduct of the proceedings relating to the applications of the type suggested in Barbaro’s case referred to in the submissions of Willing & Able in support of their costs’ applications and no such act or omission that I am able to discern from the material before me. Mr Parkinson’s failure to lodge Notices of Discontinuance on 11 September 2008 is not sufficient an omission given the fact he was discontinuing certain parts of his applications was otherwise made clear on 11 September 2008.
[59] Willing & Able’s costs’ applications, to the extent they are based on s.658(3), therefore fail to meet the pre-conditions in the section to the exercise of the discretion for the making of an order for costs.
Conclusion
[60] For the foregoing reasons, Willing & Able’s applications for an order for costs against Mr Parkinson are dismissed.
SENIOR DEPUTY PRESIDENT
1 Endnotes:
Transcript 24 July 2008 at PN 118.
2 Exhibit I4 at pn 4.
3 Exhibit P16 and exhibit I5.
4 Exhibit P8 and transcript 10 October 2008 at PN 533.
5 Exhibit P24 at pn 13-14.
6 Exhibit P24 at pn 24.
7 Exhibit P24 at pn 24.
8 Exhibit P24 at AP4.
9 Exhibit P24 at pn 40-41 and transcript of 8 April 2009 at PN 672-677 and 921-926.
10 Exhibit P24 at pn 43-44.
11 Exhibit P24 at pn 25 and 52.
12 Exhibit I4 at pn 19.
13 Exhibit P24 at pn 75.
14 Exhibit P24 at pn 83.
15 Exhibit P24 at pn 85.
16 Exhibit P24 at pn 97-98.
17 Exhibit P24 at pn 99.
18 Exhibit P24 at pn 100.
19 Exhibit P24 at pn 104, 113 and 114, exhibit I4 at pn 31 and exhibit I5.
20 Exhibit P4.
21 Exhibit P20.
22 Exhibit P6.
23 Transcript of 8 April 2009 at PN 269-272.
24 Transcript of 10 October 2008 at PN 86-87.
25 Transcript of 10 October 2008 at PN 111-112.
26 Exhibit I2 and transcript of 10 October 2008 at PN 86-88.
27 Exhibit P24 at pn 24 and exhibit I3.
28 Exhibit P24 at pn 70.
29 Ibid.
30 Exhibit I4 at pn 8 and exhibit P24 at pn 32-33.
31 Exhibit I3.
32 Exhibit I1 and exhibit P24 at pn 31.
33 Transcript of 8 April 2009 at PN294-303 and 374-380.
34 Exhibit P24 at AP113.
35 Exhibit P24 at pn 85.
36 Exhibit P24 at pn 98.
37 Exhibit P24 at pn 31.
38 Exhibit I1.
39 Exhibit P24 at pn 32.
40 Exhibit P24 at pn 31-32.
41 Exhibit P24 at pn 95.
42 Exhibit P24 at pn 100.
43 Exhibit I9.
44 Exhibit I8.
45 Exhibit I10.
46 Transcript dated 10 October 2008 at PN 1084.
47 Exhibit W1 and W2
48 Exhibit PI
49 Transcript of 24 July 2008 at PN47 -66.
50 PR932979, 17 June 2003 per Acton and Kaufman SDPP and Hingley C.
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