Mr Gregory O'Donnell v Volnorm Pty Ltd T/A Image Nationwide

[2015] FWC 1102

[2015] FWC 1102

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Gregory O'Donnell
v
Volnorm Pty Ltd T/A Image Nationwide
(U2014/11475)

DEPUTY PRESIDENT ASBURY BRISBANE, 22 MAY 2015

Application for relief from unfair dismissal - jurisdictional objection - not an employee.

Introduction

[1] Mr Gregory O’Donnell (the Applicant) applies under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of his employment from Volnorm Pty Ltd T/A Image Nationwide (the Respondent) was harsh, unjust or unreasonable. The application is met with a jurisdictional objection on the basis that the Applicant was not a person protected from unfair dismissal. The Respondent alleges that Mr O’Donnell was an independent contractor engaged by the Respondent under a contract for service, and as such was not an employee of the Respondent. This decision relates to the jurisdictional objection only.

[2] Directions were issued requiring both parties to file and serve witness statements and outlines of submissions in relation to both the jurisdictional objection and the substantive application for an unfair dismissal remedy to enable both matters to be heard and determined simultaneously. The Applicant filed a witness statement and an outline of submissions. The Respondent filed an outline of submissions attaching a number of documents, but did not provide a statement of evidence from any person. Neither party addressed the merits of the substantive application to a sufficient extent to enable it to be heard and determined.

[3] The matter was conciliated before another Member of the Commission. Conciliation was not successful. The parties consented to the matter being determined on the basis of the material filed and it was allocated to me. On 17 December 2014 I corresponded with the parties and requested that they confirm that the material they had filed was all of the material they intended to rely on in support of their respective cases. Neither party responded.

[4] After considering the material filed by the parties I decided to conduct a hearing as required by s.397 of the Act on the basis that the matter involved facts, the existence of which was in dispute. At the hearing, the Applicant was not cross-examined by the Respondent’s representative but answered a number of questions put to him by me. In particular, the Applicant’s representative contended that the Applicant was a casual employee. In circumstances where neither party had filed sufficient material to enable the merits of the unfair dismissal application to be determined, I decided to deal only with the Respondent’s jurisdictional objection, and to defer any hearing and determination of the application for an unfair dismissal remedy until the jurisdictional objection was determined.

[5] Following the hearing in relation to the jurisdictional objection, the Applicant was given an opportunity to provide bank statements to support various contentions he made about remuneration for work he performed for the Respondent and others. When those bank statements were provided, the Applicant’s representative contended, in a covering email, that the submissions to the effect that the Applicant was a casual employee during the period he performed work for the Respondent were made in error and that the Applicant was in fact a part-time employee. The matter was listed for further hearing on 19 May 2015 to allow the Respondent an opportunity to make submissions in relation to that assertion, and to enable the Respondent to address any issues arising from the bank statements.

[6] At the conclusion of the hearing on 19 May 2015 I indicated to the parties that I had decided that the Applicant was an employee and that the jurisdictional objection should be dismissed. I also indicated that detailed reasons for this Decision would be issues. These reasons are set out below.

Evidence and submissions

[7] It is not in dispute that the Applicant commenced to perform work for the Respondent in January 2007 and that the relationship between the parties came to an end on 17 July 2014. The Applicant performed work as a graphic designer. The Respondent asserts that the Applicant was engaged as an independent contractor. There is no written contract between the parties.

[8] In support of the contention that the Applicant was engaged under a contract for service, the Respondent pointed to the following matters. The Applicant had an ABN and submitted invoices to the Respondent on a weekly basis. The Respondent tendered copies of the Applicant’s tax invoices for the period of 5 July 2013 and 11 July 2014. 1 The Respondent relied upon these invoices to establish that the Applicant’s engagement fluctuated from week to week according to the amount of advertising that the Applicant was engaged to produce by the Respondent.

[9] The Respondent also tendered a handwritten and undated document setting out the number of days that the Applicant worked between January 2007 and the termination of the contract. That document stated as follows:

“Greg O’Donnel (sic)

JAN 07 20/04/12 2 DAYS WEEKLY

20/4/12 20/2/14 5 DAYS WEEKLY

28/2/14 14/3/14 4 DAYS WEEKLY

17/3/14 12/6/14 3 DAYS WEEKLY

16/6/14 17/7/14 5 DAYS WEEKLY” 2

[10] The Applicant submitted each invoice on the day he finished work within each week. The Respondent would pay him on a Wednesday if required by the Applicant. According to the Respondent’s submission, the Applicant started work each day “at times that suited him” 3 generally between 9 and 10am.4 This was subject to the Applicant’s personal and other work commitments.

[11] It appears that at the outset the Applicant was remunerated on the basis of hours worked. The Respondent submitted that from July 2010 a payment system was implemented whereby the Applicant was paid for each advertisement he completed rather than by the hour. This was said to have been an attempt to “motivate the Applicant to be more productive” 5. The Applicant then worked his own hours and was remunerated for each advertisement prepared by him, regardless of the time that it took.

[12] According to the Respondent, the Applicant was engaged for specific tasks, involving the design of advertisements for specific products for specific clients. Even if the Applicant used an earlier advertisement as a base for a later one, so that the time taken to complete the later advertisement was relatively short, he was paid the same amount.

[13] The Respondent also submitted that the Applicant assumed all risk for his work. If the Applicant made a mistake on a particular piece of design work he was required to rectify this in his own time and was not paid additional fees for this work.

[14] The Applicant did not receive any employment entitlements such as annual leave, personal/carer’s leave, leave loading, penalty rates or overtime. In its submissions, the Respondent contended that if the Applicant was a casual employee he would have been “paid superannuation and allowed some compassionate leave given the number of years he worked for the Respondent.”

[15] It was further submitted that the Applicant set his own hours of work and often informed the Respondent that he would be leaving the workplace at 2 or 3 pm. If the Applicant’s specified tasks were not completed prior to this time the Applicant “might” return after hours to complete the tasks. The Applicant’s access to the business premises of the Respondent was unrestricted. This was said to demonstrate that the Applicant’s compliance with timeframes set by the Respondent was the Applicant’s responsibility. The Respondent would tell the Applicant that certain jobs were required by certain times and he would complete them.

[16] The Respondent did not remit superannuation contributions for the Applicant. According to the Respondent, the Applicant was responsible for making such contributions. The Applicant was also said to have been responsible for the payment of any income tax and GST. The invoices tendered by the Respondent are handwritten on pre-printed forms from a book and appear to be consecutive. The pre-printed forms are headed “Tax Invoice*/Statement* (delete as appropriate)”. No deletion has been made.

[17] The pre-printed forms also include space for GST to be separately identified. There is no amount included in the space relating to GST on any of the invoices and the invoices do not indicate that any amount was charged by the Applicant for GST. There is no evidence in relation to how GST was dealt with in relation to the alleged contract for services.

[18] The Applicant used the Respondent’s computer and graphic design software to perform the work for which he invoiced the Respondent. The Respondent also supplied paper and ink. This arrangement was in place at all relevant times.

[19] The Respondent submitted that the Applicant had his own computer and software for his use on other work he undertook. This equipment was located at the Applicant’s home. It is not contended by the Respondent that this equipment was used by the Applicant to perform work for the Respondent and there is no evidence that he did so.

[20] Further, the Respondent submitted that the Applicant undertook other work besides that which he completed for the Respondent. He was not required to obtain the Respondent’s consent in relation to this additional work although issue was taken with the fact that the Applicant had performed at lease some of this work using the Respondent’s equipment. In this regard the Respondent tendered examples of work undertaken by the Applicant for other businesses. These documents were said to have been discovered on the Respondent’s computers after the contract between the Applicant and the Respondent ceased. 6

[21] The documents tendered by the Respondent in support of the contention that the Applicant performed work for other businesses, were as follows:

● Four invoices from a company called Dynamic Headwear for a range of items including mugs, caps and mouse pads, directed to a company called RJR Sports Pty Limited and indicating that the items were to be delivered to RJR Sports Pty Ltd;
● Graphic design work for printing on to mugs; and
● Graphic design work for cricket uniforms.

[22] An ASIC Current Organisation Extract was also tendered to establish that Mr Simmons, who represented the Applicant in these proceedings, is a Director and the Secretary of RJR Sports Pty Limited. It was contended that the invoices were for graphic design work that was performed on the Respondent’s computers without its permission and that the Applicant did not have the Respondent’s consent to undertake work for other businesses on its computers.

[23] In response to the Applicant’s submissions, the Respondent submitted that the Applicant’s tax invoice, dated 21 February 2007, being the period which the Applicant asserts he was on probation, “rendered it clear that the Applicant was always engaged as a contractor and worked flexible hours according to the number of advertisements he was to design” 7. The Respondent does not specify how this invoice makes these matters clear as the invoice does not mention any contractor arrangements, number of advertisements, the words “tax invoice” or contain any reference to flexible hours. The also Respondent referred to the Applicant’s invoice of 2 May 2007 being for work conducted on Monday, Tuesday and Wednesday of that week. The hours worked during that period were 9 on one day, 4 on another and then 10 hours.

[24] The Respondent disputes that the Applicant worked within normal business hours, referring to the invoice of 2 May 2007 indicating that the Applicant finished work at 6pm, 6:30pm and 7pm. The Respondent stated that its business operates from 8.30am to “approximately 4pm”. The Applicant worked according to his workload or number of jobs required, rather than working to normal working hours. The Respondent was not present at the workplace and did not direct the Applicant to work particular hours of work.

[25] The Applicant stated that when he commenced employment in January 2007 he was paid a rate of $20 per hour while “on probation” and subsequent to this he received $24 per hour. The Applicant filed a number of handwritten invoices which were illegible and later filed typed versions of the invoices.

[26] An example invoice is “INVOICE 04” which reads as follows:

“TO: IMAGE NATIONWIDE

FROM: GREG O’DONNELL

[address removed]

ABN: 78286163925

THURS 15/2 - 2:30- 5pm

MON 19/2- 8:30- 4:30pm

WED 21/2 - 8:30 - 3pm

PAID 21/02/2007

Signed: B. Fishburn” 8

[27] The Applicant stated that on his first day of employment with the Respondent he was informed by Mr Fishburn that he “needed a (sic) ABN to get paid” 9. The Applicant was advised that the use of an ABN was not negotiable. The Applicant obtained an ABN and was shown how to issue an invoice by Mr Fishburn.

[28] Invoice 65, with the date 11/06/2008, indicates that the Applicant received a pay rise to $26 per hour. The Applicant stated that at the end of the 2010 financial year he was instructed by the Respondent to amend his invoicing practices. The Applicant was instructed to no longer mention hours. The Applicant stated that the Respondent’s reasons for making this instruction were based on advice from their accountants that this should not be on the invoice. At about the same time the Applicant received a further pay rise to $28 per hour.

[29] The Applicant submitted that notwithstanding there is no reference to hours, the amount of each invoice can be evenly divided by the hourly rate at either full hours or half hours. This can be seen on the invoices tendered by the Respondent. For example, invoice 25 dated 29/8/2013 is for a total amount of $714.00. This equates to 25.5 hours at a rate of $28 per hour. In final submissions in reply the Applicant contended that the invoicing arrangements between the parties was a sham and always related back to the hourly rate paid to him and that he had never been paid on the basis of each advertisement that he produced.

[30] The Applicant submitted that all work was required to be done at the Respondent’s premises and that no work was allowed to be taken away from the premises. The work undertaken by the Applicant was undertaken during the Respondent’s ordinary business hours, using the Respondent’s office equipment.

[31] The Applicant said that he signed off any correspondence as “Greg O’Donnell Image Nationwide” so that recipients were aware that he worked for the Respondent. The Applicant also said that he was never tardy, late or sick during his employment with the Respondent.

[32] The Applicant submitted that he did not have the ability to subcontract to another person to complete the work allocated to him and had no control over the work he was required to perform. The work was completed on the Respondent’s equipment, using the Respondent’s trading name and was always checked by the Respondent.

[33] The Applicant also had an ongoing expectation of work given the continuous period of 7 years during which he worked for the Respondent. He submitted that he bore no financial risk from the relationship and was not required to have any business insurance.

[34] It was conceded by the Applicant that he did at times work out of ordinary office hours. The Applicant stated that he did so because he was a trusted long term employee. The Applicant submitted that he was told by the Respondent what to do and when to do it. Further, the Applicant stated that he is making inquiries into superannuation with the Australian Taxation Office.

[35] In relation to the invoices and graphic design work performed for other persons, the
Applicant said that “occasionally” he performed “voluntary work” for friends and acquaintances. He did not receive financial remuneration for this work and at most received a bottle of gin for one job. This work included graphic design in relation to:

● Uniforms to be used by the Papua New Guinean Womens’ Cricket team of which his partner is the National Captain;
● The cricket club of which the Applicant is the Secretary and Mr Simmons is the Treasurer;
● Swing tags for a friend’s partner who sells swimwear at markets;
● Items including caps, mugs and mouse pads for a friend who also works for the Respondent and has an interest in “sausage dogs”.

[36] In relation to the invoices for caps, mugs and mouse pads, found by the Respondent on its computers, the Applicant said that Mr Simmons has an account with Dynamic Headwear. When the Applicant did graphic design work for friends he would purchase items on which the designs could be printed (such as mugs, caps and mouse-pads) from Dynamic Headwear and have the items charged to Mr Simmons’ account. The friends for whom the work was done would then reimburse the Applicant for the amount of those items and he would give the money to Mr Simmons. By doing this the items could be purchased at a lower price. The applicant said that he made no money for himself from performing this work.

[37] Further the Applicant said that payment received from the Respondent was his primary source of income, other than some casual Christmas retail positions which he used to earn additional income. The bank statements tendered by the Applicant show no indication of payment from other sources. The statements also show that the Applicant had a practice of putting aside savings to cover periods of leave. The Applicant said in response to a question from the Commission that he did this on the basis that he was not paid for leave.

Approach to determining whether a person is an employee or an independent contractor

[38] The approach to determining whether a person is an employee or an independent contractor, and the law in relation to that question, was comprehensively reviewed by Buchanan J (with whom Lander and Robertson JJ agreed) in the Decision of the Full Court of the Federal Court in ACE Insurance Ltd v Trifunovski. 10 In that case his Honour made a number of general observations which are apposite in the present case:

“…There may be many good reasons why it might suit an individual worker to be treated as an agent or a contractor rather than as an employee. Those reasons may include a freedom to incorporate or act in partnership (with one’s spouse for example); different taxation obligations; more freedom about when, and how, work is done; the ability to work for others at the same time etc. However, it is increasingly necessary that parties conduct themselves (in their relations with regulatory agencies, and not just each other) in accordance with a correct appreciation of the nature of their relationship, not just as it may suit them (or one of them). The parties may agree the terms of their contract, but any statement by them about the character of their relationship, or of their contract, has consistently been held not to be decisive of the true legal character of either.

In the case of an employee, an employer is bound to deduct and remit income tax, make superannuation contributions on behalf of the employee and pay payroll tax. These all involve the discharge of obligations to regulatory agencies and, in some cases, failure to do so may attract criminal sanctions. On the other side, where a contractor is carrying on business independently of employment, that contractor will need to take responsibility for insurance, income tax arrangements, and the lodging of appropriate tax returns. Those arrangements will depend on whether the “contractor” is a sole trader, is in partnership, is engaged to provide services through a corporate entity and so on. The method chosen by the contractor will generate procedures for the acquittal of any tax liability which will need to be observed. Under whichever arrangement is appropriate, tax deductions for business and operating expenses may be claimed. The company engaging the contractor will usually have no involvement in these matters and may not even know about them.

Often, perhaps even usually these days, a contractor will need an Australian Business Number and to be registered under the GST legislation. The contractor will be entitled to demand a 10% additional payment on account of GST, which must be remitted to the taxation authorities pursuant to regular returns. The contractor will have the right to claim, as a deduction, input tax credits (GST credits). Although the engaging company would be required to furnish some of the material necessary to make the returns, it would not be involved in all aspects. Ultimately, compliance with the taxation legislation, in this and other respects, would be a matter for the contractor.
Insurance and any necessary statutory permits or licences may need to be arranged. There is a miscellany of other obligations (and benefits) which are imposed upon (or which apply to) those who are in business on their own account, rather than being engaged as employees.

I mention all these matters to highlight the potential difficulties of attempting to retrospectively undo what parties have chosen to adopt as the basis of their relationship, whatever it may be. However, although conventionally some weight is given to how parties have represented their relationship, as I have already said, what they have stated is not conclusive. In many cases, a decision by the parties about how to characterise the relationship merely accords with what is thought to be the characterisation of greatest convenience to one party, or both.

It is also difficult, in my view, to give much independent weight to arrangements about taxation, or even matters such as insurance cover or superannuation. These are reflections of a view by one party (or both) that the relationship is, or is not, one of employment. For that reason, in my view, those matters are in the same category as declarations by the parties in their contract (from which they often proceed). They may be taken into account but are not conclusive. These matters are less important than the adoption by the parties (where this occurs) of rights and obligations which are fundamentally inconsistent with basic requirements of a contract of employment, such as the ability to delegate the discharge of obligations under a contract to another person, or where there is a lack of control over how work is done.

The survey of cases which follows is directed to revealing the tests which have been stated at the highest level of authority for determining whether an employment relationship exists. It will readily be seen that the emphasis on various matters has shifted in response to the changing way work, and society in general, is organised. However, the fundamental tests remain more or less constant. The examination in various cases should also be understood in the context that a basic (but often unstated) premise is that a contract of service requires discharge of duties by the personal service of the employee, whereas in a contract for services that is only one of the possibilities. The fact that the need to characterise the relationship at all only ever arises when personal service is, in fact, provided, is an important element to be borne in mind. The possibility for confusion about the character of the relationship can usually only arise in that circumstance.” 11

[39] From his Honour’s review of the cases, the following principles can be distilled:

● While the parties may have agreed the terms of their contract, any statement by them about their relationship is not decisive;
● The right of control remains an important consideration and may be found in the right of organisation and allocation of work as much as in some theoretical right to say how actual work should be done;
● The right to dismiss, provision of equipment, hours of work, provision for holidays and method of remuneration, the obligation to work, arrangements for taxation and the capacity to delegate work are relevant matters for consideration;
● The fact that a person is remunerated by commission and that there is little evidence of detailed supervision or concern about when the person is working or is absent on leave, is not determinative in circumstances where the person is integral to the operations of the alleged employer’s business, is required to report his or her whereabouts each working day, works exclusively for the alleged employer and is required by statute to act in the interests of the alleged employer;
● The essential nature of a contract of employment is that it is a contract for the provision of personal service;
● That the person performing the work is presented to the outside world as an emanation of the alleged employer is an indicator of an employment relationship;
● Rights on the part of a person alleged to be a contractor to delegate the performance of work, to incorporate or to engage employees are indications that the person is carrying out a business on his or her own account;
● Contractual terms which deny any requirement for personal services or represent clear indications of the pursuit of an independent business tend against a conclusion that the person is an employee;
● The creation by an alleged contractor of goodwill or saleable assets in the course of work, payment of business expenses of any significant amount from his or her remuneration and the payment to the alleged contractor of remuneration without deduction for income tax is of considerable importance;
● The fact that an alleged contractor has organised his or her affairs on the basis that he or she is not an employee and evidences an understanding that this is the case is an indicator that the relationship is not one of employment; and
● It is necessary to examine the reality of the relationship rather than to simply focus on the terms of the contract.

[40] The review of the law and the principles set out in the judgment of Buchanan J in ACE Insurance Limited v Trifunovski was subsequently approved by Jessup J - with Allsop CJ and White J agreeing - in Tattsbet Limited v Morrow. 12 In that case his Honour observed:

“The area of the primary Judge’s reasons which is said to be problematic is that set out in para 54 above. As will be seen, his Honour ultimately saw the question as one which involved, in effect, a dichotomy between a situation in which the putative employee works in the business of another and a situation in which he or she conducts his or her own business as an ‘entrepreneur. To view the matter through a prism of this kind is, however, to deflect attention from the central question, whether the person concerned is an employee or not; or, perhaps, as Mason J put it in Stevens v Brodribb Sawmilling Co Pty Ltd, to ‘shift the focus of attention’ to a no less problematic question. As Buchanan J put it in ACE Insurance, ‘[w]orking in the business of another is not inconsistent with working in a business of one’s own’. On the other hand, if the putative employee’s circumstances exhibit the characteristics of a business, that will undoubtedly be a matter proper to be taken into account in determining the question at hand, so long as sight is not lost of the question itself. The question is not whether the person is an entrepreneur: it is whether he or she is an employee.” (citations omitted)

Conclusion

[41] Where the Respondent raises a jurisdictional objection the onus is on the Respondent to satisfy the Tribunal of its case. 13 The Respondent has all the information relating to its objection and needs to lead evidence to demonstrate its case on the balance of probabilities.14 The Respondent led no evidence and did not seek to cross-examine the Applicant.

[42] After considering the evidence and the material tendered by the parties, I have concluded that the Applicant was not an independent contractor, and that the contract between the Applicant and the Respondent was a contract of service and not a contract for services. I have reached this conclusion for the following reasons.

[43] There is no definite statement by the parties about their relationship. There is no written contract. It is true that the Applicant had an ABN and invoiced the Respondent for the work he performed. However, the uncontested evidence of the Applicant is that he obtained the ABN at the same time as he commenced work with the Respondent and did so because he was told that he needed an ABN in order to be paid for the work he performed. The Applicant also states that the Respondent’s owner showed him how to complete tax invoices. It is also the case that the way that invoices were drawn up by the Applicant was required to be changed at the direction of the Respondent.

[44] In my view, the Respondent cannot rely on the fact that an alleged contractor has obtained an ABN and provided invoices for work performed to establish that the relationship is a contract for service, in circumstances where there is evidence establishing that it required that the ABN be obtained in order to pay the alleged contractor for work performed under the contract and directed the alleged contractor in relation to the form of the invoices. Viewed in this light it cannot be said that the Applicant organised his own affairs on the basis that he was not an employee.

[45] It is also the case that the Applicant does not appear to have charged the Respondent for GST, a fact about which the Respondent was obviously well aware given that the space on the invoices it received for the identification of GST has not been filled in. This is not consistent with the Applicant being an independent contractor.

[46] The work performed by the Applicant involved the provision of personal services and his skills as a graphic artist. The Applicant provided nothing but personal services to perform the work under the contract. There is no evidence that he was permitted to delegate that work or could engage others to perform it. While the Applicant may have had flexibility in the times at which he worked, it is more probable than not that this was due to the nature of the work he performed under the contract rather than the nature of the contract itself. It is also relevant that the Applicant was not permitted to perform work at locations other than the Respondent’s premises and that he was not required to provide any tools, equipment or consumables to perform his work.

[47] The Applicant performed all of his work for the Respondent on the Respondent’s equipment at the Respondent’s premises. He was not charged for the use of those premises and made no payments at all for any expenses relevant to the performance of his work from the remuneration that he earned for that work.

[48] It is also not determinative that the Applicant was paid for each advertisement that he produced. That a person is paid by results is not inconsistent with the person being an employee. In any event, it is the case that the amounts paid to the Applicant by virtue of his invoices are divisible by the hourly rate of pay that was applicable at the relevant time, so that it is more probable than not that he was paid by the hour. Regardless of the basis upon which the rate he was paid was calculated, it is not a sufficient basis for a conclusion that he was an independent contractor.

[49] I accept the Applicant’s uncontested evidence that he was presented to customers of the Respondent as an emanation of its business by virtue of the fact that he signed off on emails and other correspondence as a representative of the Respondent. There is no evidence that the Applicant created any good will or saleable assets in the course of his work. The Respondent allocated work to the Applicant and controlled the work that he performed by virtue of that allocation. The Applicant did the work that was allocated to him by the Respondent from its customer base and did not have a customer base on his own account.

[50] The fact that the Applicant performed unpaid work for friends and acquaintances using the Respondent’s computer equipment is not determinative of his status as a contractor. There is no evidence that the Applicant obtained any financial benefit from the performance of such work, much less that he was conducting a business on his own account. The Applicant has explained the basis upon which he performed this unpaid work and I accept his evidence in this regard.

[51] The fact that the Applicant was not provided with leave and had no superannuation contributions or taxation instalments paid on his behalf is also not determinative of the relationship with the Respondent. The Applicant’s bank statements indicate that he put aside savings to cover holidays that he wished to take. This is equally indicative that he was a casual employee as it is that he was an independent contractor. Given the point at which the Applicant withdrew his contention that he was a casual employee and contended instead that he was a part-time employee, I make no finding in relation to this issue.

[52] I am satisfied and find that the relationship between the Applicant and the Respondent was at all relevant times one of employee and employer.

[53] For these reasons I dismissed the Respondent’s jurisdictional objection at a hearing on 19 May 2015. As I informed the parties at that hearing, they are to advise within seven days of the date of release of these Reasons for Decision as to whether they are prepared to participate in a further Conciliation Conference in relation to the substantive application. If further Conciliation is not sought, the application for an unfair dismissal remedy will be listed for hearing and further Directions will be issued.

[54] An Order dismissing the Respondent’s jurisdictional objection will issue with these Reasons for Decision.

DEPUTY PRESIDENT

 1   Respondent’s submissions at Attachment 1.

 2   Ibid at Attachment 2.

 3   Ibid at paragraph 5.

 4   Ibid.

 5   Ibid at paragraph 5.

 6   Ibid Attachment 3.

 7   Respondent’s response to Applicant’s submissions at paragraph 1.

 8   Attachment to Applicant’s submissions.

 9   Applicant’s submissions at paragraph 1.2.

 10 (2013) 209 FCR 146.

 11   Ibid at [32] – [38],

 12 [2015] FCAFC 62.

 13   Crema and Others v Abigroup Contractors[2012] FWA 5322, Commissioner Cribb, at [81].

 14  See for example Govinda Prasad Dhungel v The Baking Company Australia Pty Ltd[2012] FWA 4717, Deputy President Sams; Eva v Victorian Radio Network Pty Ltd [2007] AIRC 814, Commissioner Eames.

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