Mr Harley Bartlett v Remote Area Logistics Pty Ltd

[2010] FWA 3333

[2010] FWA 3333

FAIR WORK AUSTRALIA

DECISION

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

Mr Harley Bartlett
v
Remote Area Logistics Pty Ltd
(U2009/14312)

COMMISSIONER WILLIAMS PERTH, 30 APRIL 2010

Termination of employment – jurisdictional objection.

[1] This is an application under s. 394 of the Fair Work Act 2009 (the FW Act) lodged by Mr Harley Bartlett. The respondent is Remote Area Logistics Pty Ltd.

[2] Mr Bartlett in his application says the date he was employed was 12 August 2009 however it is stated next to this in brackets “(started at Ralco Australia in April 2005)”. The dismissal was notified and took effect on 23 November 2009.

[3] On the face of the application Mr Bartlett was employed with the respondent employer Remote Area Logistics Pty Ltd for less than four months.

[4] The respondent Remote Area Logistics Pty Ltd in their response confirmed the respective start and finish dates for Mr Bartlett as 12 August 2009 and as 23 November 2009.

[5] The respondent has objected to the application arguing that Mr Bartlett has not served the requisite minimum period of employment with the respondent.

[6] The relevant parts of the legislation are set out below.

s. 382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

s. 383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

s. 384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

[7] To be able to make an application Mr Bartlett must have been employed by the respondent Remote Area Logistics Pty Ltd for at least 6 months, or 12 months if the respondent is a small business employer.

[8] The parties were invited to and have provided written submissions regarding their views on the employer's objection.

The submissions

[9] There are three entities that the parties are concerned with. These are Ralco Australia Pty Ltd, Ralco (W.A.) Pty Ltd and Remote Area Logistics Pty Ltd.

[10] The respondent says that Mr Bartlett was first employed by Ralco Australia Pty Ltd in 2005. A copy of a tax file number declaration signed by Mr Bartlett beginning his employment with Ralco Australia Pty Ltd on 23 May 2005 was provided.

[11] Mr Bartlett it is submitted later was apprenticed to Ralco Australia Pty Ltd, on 1 July 2009. His apprenticeship with Ralco Australia Pty Ltd was terminated when his employment with Ralco Australia Pty Ltd ended on 11 August 2009. The respondent in support of this submissions has provided copies of letters from the Mission Australia Australian Apprenticeship Centre that show Mr Bartlett's apprenticeship was with Ralco Australia Pty Ltd and commenced on 1 July 2009 and another letter showing this was later cancelled effective 11 August 2009.

[12] In August 2009 it is submitted employees with Ralco Australia Pty Ltd who wanted to become employees of Ralco (WA) started as new employees with Ralco (WA) and no annual leave or sick leave or any other entitlements were transferred as they were new contracts of employment.

[13] Soon thereafter on 13 October 2009 Ralco Australia Pty Ltd was placed in the hands of the liquidators.

[14] The respondent says that Mr Bartlett was employed by Ralco (WA) on 12 August 2009 and signed a new tax declaration form to that effect. A copy of this has been provided by the respondent.

[15] The respondent says Mr Bartlett was dismissed by Remote Area Logistics Pty Ltd on 23 November 2009. The respondent says that Ralco (W.A.) Pty Ltd changed its company name to Remote Area Logistics Pty Ltd on 7 September 2009 and provided a copy of the certificate of registration of change of name demonstrating this and demonstrating that the Australian company number remained the same being 110 511 610.

[16] The respondent asserts that there was no transfer of business and Mr Bartlett's employment with Remote Area Logistics Pty Ltd (previously named Ralco (WA) Pty Ltd) was for less than four months and so this application cannot be made and must be dismissed.

[17] Both parties have provided copies of pay slips for Mr Bartlett.

[18] Mr Bartlett says that he was transferred from Ralco Australia Pty Ltd to Remote Area Logistics Pty Ltd and that there was never any formal notification of this nor did he have any say in it and he submits that at the time of this transfer annual leave and sick leave entitlements were transferred.

[19] Mr Bartlett says that he was unaware that his apprenticeship had been cancelled until 15 December 2009 many months after it apparently had occurred and after his employment with Remote Area Logistics Pty Ltd had ended. This is consistent with the respondent’s submission and the letters provided to the tribunal.

[20] Mr Bartlett has provided a copy of a list of concerns he had raised prior to his employment ending. According to the header on this list these were issues apparently addressed by the parties on 16 November 2009.

[21] The first of these reads as follows:

“ What Award are we employed under? At Ralco was Electrical Contractors Award. Is this still the case?”

[22] The statement implies an understanding by Mr Bartlett that there had been a change in his employer.

[23] Mr Bartlett acknowledges that Remote Area Logistics Pty Ltd was formerly named Ralco (W.A.) Pty Ltd.

[24] He explains that he had some knowledge that Ralco Australia Pty Ltd had some serious financial difficulties in August 2009 and that it has since gone into liquidation. He submits that a Mr Motuzas was a director of both Ralco Australia Pty Ltd and Remote Area Logistics Pty Ltd but Mr Motuzas removed himself as a director of Ralco Australia Pty Ltd in October 2009, athough there is nothing to support this assertion. Mr Bartlett submits that the transition from Ralco Australia Pty Ltd to Remote Area Logistics Pty Ltd was a transfer of business.

[25] Other information is provided regarding the reasons for Mr Bartlett's termination and his views on these but these are not relevant to this preliminary jurisdictional point.

Consideration

[26] On the face of the application Mr Bartlett was employed for less than six months by the respondent.

[27] However Mr Bartlett argues that there was a transfer of business between Ralco Australia Pty Ltd and Remote Area Logistics Pty Ltd. Mr Bartlett is arguing that his service with Ralco Australia Pty Ltd should count as service with Remote Area Logistics Pty Ltd.

[28] Section 22 sets out in detail the meaning of service and continuous service and s. 311 deals with associated concepts including transfer of business and transferring employee as follows:

s. 22 Meanings of service and continuous service

…….

When service with one employer counts as service with another employer

(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer(taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.

Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).

(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.

Note: For example:

(a) the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and

(b) if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.

Meaning of transfer of employment etc.

(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a) the following conditions are satisfied:

(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b) the following conditions are satisfied:

(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

(8) A transfer of employment:

(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and

(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.

s. 311 When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

Meaning of transferring employee

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring work.

Old employer outsources work to new employer

(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer ceases to outsource work to old employer

(5) There is a connection between the old employer and the new employer if:

(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.

New employer is associated entity of old employer

(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.

[29] If there is a transfer of employment any period of service of the employee with the first employer counts as service of the employee with the second employer.

Was there a transfer of employment?

[30] In this case the parties agree that Mr Bartlett became employed by Remote Area Logistics Pty Ltd immediately after his employment with Ralco Australia Pty Ltd ended and that this was not more than three months after the termination of the employee's employment with the first employer. There is sufficient information for a conclusion that s. 311 (1) (a), ( b) and (c) have been satisfied and so I find that Mr Bartlett was a transferring employee.

[31] There is no information provided by either party that would allow the tribunal to conclude that Ralco Australia Pty Ltd and Remote Area Logistics Pty Ltd are associated entities. Consequently s.22(7)(a)(ii) has not been shown to apply.

[32] There has been no information provided regarding the possible beneficial use of assets, outsourcing or ceasing to outsource work or whether the two entities may be associated. Consequently there is no basis on which the tribunal can find that there is a connection between the two employers as defined in any of s. 311(3) to (6). In short s. 311(1) (d) has not been shown to apply. Consequently I am not satisfied that there was in this case a transfer of business within the meaning of s. 311 between Ralco Australia Pty Ltd and Remote Area Logistics Pty Ltd. s.22(7)(b) has not been shown by the applicant to apply.

[33] I cannot be satisfied that there has in this case been a transfer of employment ( s.22(5)) and as a result the period of continuous service for the applicant does not include prior service with Ralco Australia Pty Ltd.

[34] I find then that Mr Bartlett having been employed by the respondent Remote Area Logistics Pty Ltd for less than four months has not served the minimum employment period as defined in s. 383.

[35] This application is beyond jurisdiction and is now dismissed.

COMMISSIONER

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