Mr Matthew Kruger v Rio Tinto Exploration T/A RTX
[2012] FWA 8638
•19 OCTOBER 2012
[2012] FWA 8638 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Matthew Kruger
v
Rio Tinto Exploration T/A RTX
(U2012/1058)
DEPUTY PRESIDENT SWAN | BRISBANE, 19 OCTOBER 2012 |
[1] This application is made pursuant to s.394 of the Fair Work Act 2009 [the Act]. The application is made by Mr Matthew Kruger and seeks an unfair dismissal remedy against Rio Tinto Exploration T/A RTX [RTX].
[2] A jurisdictional challenge has been made by RTX on the grounds that it is not the employer of the applicant.
[3] The Tribunal has been asked to determine the jurisdictional challenge on the papers.
RTX’s jurisdictional challenge
[4] RTX claims that the applicant at all times was employed by Gnomic Exploration Services [Gnomic] and was placed within RTX’s business only for the 2012 field season.
[5] Gnomic supplies labour hire services specialising in geoscience and geo-technical contractors and consultants to Australian minerals and energy industries.
[6] RTX contracted the services of Gnomic for the purpose of providing field personnel to meet the peaks of the field season. [Provision of Services to Rio Tinto Exploration Pty Limited Services Agreement No. CO147JRW12]
[7] Gnomic invoices RTX monthly for the services provided and Gnomic is responsible for superannuation, payroll tax, public liability insurance and workers’ compensation insurance for its employees.
[8] Gnomic also supplies health, safety and environment tools and training to its employees.
Applicant’s response
[9] The applicant’s response primarily goes to the issues surrounding what he alleges to be his unfair dismissal by RTX.
[10] The applicant responded to RTX’s jurisdictional challenge by providing a copy of correspondence from Gnomic to him dated 16 January 2012. The applicant described the correspondence as a “signed copy of a contract Rio Tinto offered me. A contract for the 2012 complete season. A legal contract” He further states that RTX has ‘illegally ended this contract by fabricating a story…..”
[11] The correspondence upon which the applicant relies contains, inter alia, the following:
“We confirm that you are employed by Gnomic Exploration Services Pty Ltd as a PAYG employee, contracted to Rio Tinto Explorations as a Field Assistant. You will be reporting to Matthew Hatzl. The rate is $350 per 10 hour day and $400 per 12 hour day. The contract commences on 15 January 2012. This contract is valid for the 2012 field season.
…..
You must supply your own safety gear including a hat, sun block, long sleeved shirts and steel capped boots. We have enclosed a Gnomic work shirt for you and other long sleeved shirts can be obtained from ‘Op’ shops.
…..
Both parties are required to give sufficient notice of intention to terminate contractual agreements.
…
Both the client company and contractor reserve the right to immediate termination based on unlawful misconduct by any of the relevant parties.
….
In addition to your wages, Gnomic Exploration Services Pty Ltd charges the client a management fee to cover:
Workers Compensation Insurance, Professional Indemnity and Public Liability Insurance. In accordance with the Superannuation Guarantee Gnomic pays a 9% superannuation guarantee contribution (SGC) on your behalf. Under the new Super Choice legislation you are able to nominate a fund for this to be paid.
….
Payroll Tax – In accordance with State legislation, Gnomic pays payroll tax on your gross wages and superannuation.
[12] Prima facie it would appear that the applicant was in fact an employee of Gnomic rather than of RTX.
RTX’s supporting submissions and documentation
[13] Correspondence between Gnomic and RTX of 6 March 2012 incorporates an agreement between these two parties where Gnomic agrees to provide a range of services to RTX.
[14] Within that agreement, Clause 5 states:
“Either party may terminate this Agreement without cause at anytime by providing the other party with 7 days of written notice. Rio Tinto may terminate this Agreement immediately if:
● The services are not of a satisfactory standard;
● You or your staff engage in any act of dishonesty;
● You cease to conduct business, become insolvent, have an administrator appointed or any proceeding is commenced to wind you up; or
● You breach any term of this Agreement.”
[15] Clause 10 and 11 of the Agreement states:
“Before you or any of your employees enter Rio Tinto premises, you and your employees must first be inducted by an authorised Rio Tinto employee, and must register at the relevant site office or reception”.
“Nothing in this Agreement shall constitute Rio Tinto as an employer of you. You agree that you will perform the Services as an independent contractor”.
[16] Mr Matthew Hatzl [Field Superintendent in charge of operational and logistics activities which supports Rio Tinto projects in the Bowen Basin] gave the following evidence:
● There are two seasons in the industry.
● The first field season runs from March to November and contractors are frequently used at this time. .
● In the field season, there is usually a mix of 75% contractors to 25% RTX employees.
● In the wet season, the contractors are disengaged and RTX employees perform administration work and servicing and maintaining the camps. At this time there are no field activities.
● In addition to Gnomic, RTX engages a number of other contractors.
● If it is raining, contractors who have been rostered to work may be advised that their services are not needed until weather conditions have improved. These contractors are not paid during this period.
● Employees of RTX wear Rio Tinto shirts, and Gnomic provides its employees with a shirt [as do other contractors] and Gnomic booklets on first aid and risk assessment.
● Contractors are paid at an agreed rate and are invoiced to RTX.
● Contact is made with Gnomic every couple of months to replace roles within the field.
● Typically, Gnomic contractors are contracted to RTX for one to two field seasons.
● Gnomic contractors complete a time sheet which is signed off by Mr Hatzl and Gnomic provides weekly invoices to RTX for the contractor services. Gnomic pays their employees weekly or daily.
● RTX travel coordinator organises all travel for contractors. Mr Hatzl says that this minimises time and costs as Gnomic charge a 10% administration fee on all services.
[17] Whilst on site, Gnomic personnel are part of the field crew and under the direct supervision of Rio Tinto Exploration.
Consideration of material and conclusion
[18] This is not a matter where there are competing claims as to the essence of the agreement between Gnomic and RTX.
[19] The applicant’s own documentation highlights that he is an employee of Gnomic rather than an employee of RTX.
[20] It is evident as well, that the applicant was aware he was not an employee of RTX as he had previously stated that RTX had offered him employment on a full time basis rather than on the basis that he worked for Gnomic. This offer was rejected by the applicant.
[21] Notwithstanding all of the other indicia which point to the applicant having an employment relationship only with Gnomic, that factor as well leads to the conclusion that the applicant was well aware that he was not an employee of RTX.
[22] The entirety of the claim being made by the applicant concerns what he views as his unfair dismissal by RTX. Unfortunately, RTX is not the relevant employer.
[23] The jurisdictional challenge is upheld.
DEPUTY PRESIDENT
Appearances: Mr Matthew Kruger for applicant
Ms E Minns for Rio Tinto Exploration T/A RTX
Hearing details: Heard on the papers
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