Mr Ryan Murray v Dangan Pty Ltd T/A the Grounds Cairns
[2021] FWC 6481
•26 NOVEMBER 2021
| [2021] FWC 6481 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ryan Murray
v
Dangan Pty Ltd T/A The Grounds Cairns
(U2021/1554)
COMMISSIONER SPENCER | BRISBANE, 26 NOVEMBER 2021 |
Application for an unfair dismissal remedy.
INTRODUCTION
[1] Mr Ryan Murray (the Applicant) lodged an application to the Fair Work Commission (the Commission) for an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the dismissal of his employment by Dangan Pty Ltd T/A The Grounds Cairns (the Respondent or Dangan) was harsh, unjust or unreasonable.
[2] The Respondent raised two jurisdictional objections to the application, being that the Respondent was a small business employer and that the Applicant had not met the associated minimum employment period of 12 months. The Respondent also submitted that the dismissal was consistent with the Small Business Fair Dismissal Code.
[3] Given that there were issues in dispute and contested facts in relation to the number of employees engaged by the Respondent, a hearing was required to be held in accordance with s.397 of the Act and Keira Fletcher v Little Darlings Early Development Centre. 1
[4] This matter was subject to a previous jurisdictional decision by Deputy President Lake. 2 In that decision, Deputy President Lake found that the Respondent was not a small business employer and dismissed the jurisdictional objections. That decision was appealed, and the appeal was upheld, on the grounds that the Deputy President erred in deciding the jurisdictional matter on the papers, without having conducted a conference or hearing in circumstances where there were disputed facts between the parties, in accordance with s.397 of the Act. The matter was then referred by the Full Bench to me to hear and determine the jurisdictional objections. The Full Bench did not consider the decision in terms of the jurisdictional objections in any way. Further directions were set for the consideration of any further material that the parties sought to file.
BACKGROUND
[5] The Applicant commenced employment with the Respondent on 1 July 2020, engaged as a Tournament Coordinator on a part time basis up until his termination on 5 February 2021. The Applicant had been employed for just over 6 months.
[6] The main issue in contention was the number of employees engaged by the Respondent at the time of the Applicant’s dismissal. The Respondent (represented by Mr Zenon Caravella) named in this matter is Dangan Pty Ltd (Dangan). Dangan shares Directors with another entity called The R&J Caravella Family Trust T/A Caravella Backpackers (Caravella Backpackers). The Caravella Backpackers shares staff with Dangan. It is uncontested by the parties that Caravella Backpackers is an associated entity of the Respondent.
[7] However, it is noted by the parties that Zenon Caravella, the Director of both Dangan and Caravella Backpackers also owns and operates ZenKat Family Trust T/A Caravella Football Academy (Caravella Football Academy) alongside his mother, Ms Katherine Caravella. Ms Caravella has no ownership of Caravella Backpackers or Dangan. Caravella Football Club pays as a commercial tenant of Dangan and it was set out that it receives no financial benefit in the way of services by Dangan.
[8] Whilst employed by the Respondent, the Applicant had worked as a Coach with Caravella Football Academy. Aside from this, the Applicant worked within FNQ Fives, and had access to the internal scheduling of the referees at The Ground Cairns. The Applicant had no other involvement with any of the operations of the Caravella Football Academy or the Caravella Backpackers.
RELEVANT LEGISLATION
[9] Section 23 of the Act provides the meaning of a “small business employer” being:
“(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
[10] The Act defines “regular casual employee” to mean:
“a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:
(a) the employee is a casual employee; and
(b) the employee has been employed by the employer on a regular and systematic basis.”
[11] The definition of “minimum employment period” is defined under s.383 of the Act:
“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.”
[12] The Act defines an “employee” as a national system employee which is further defined under s.13 of the Act to mean:
“A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.”
ASSOCIATED ENTITIES
[13] Section 12 of the Act stipulates:
“associated entity has the meaning given by section 50AAA of the Corporations Act 2001.”
[14] Section 50AAA of the Corporations Act 2001 defines an associated entity as:
“50AAA Associated entities
(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(4) This subsection is satisfied if:
(a) the associate controls the principal; and
(b) the operations, resources or affairs of the principal are material to the associate.
(5) This subsection is satisfied if:
(a) the associate has a qualifying investment (see subsection (8)) in the principal; and
(b) the associate has significant influence over the principal; and
(c) the interest is material to the associate.
(6) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the associate; and
(c) the interest is material to the principal.
(7) This subsection is satisfied if:
(a) an entity (the third entity) controls both the principal and the associate; and
(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.
SUMMARY OF RESPONDENT’S MATERIAL
[15] The Respondent/employer submitted that in 2018 the Cairns Bowls Club was purchased with the intention of converting the clubhouse into separate commercial tenancies that housed sporting services to create a “one stop shop” for families to take their children to play sport. With the director of Dangan having already established his football academy separately owned and managed to Caravella Backpackers, it was decided that Caravella Football Academy would be the first paying commercial tenant of Dangan and each further commercial tenant would pay rent to Dangan, with the tenancies making up a significant portion of the total income of Dangan, (The Grounds Cairns). In essence, the Respondent submitted that despite sharing a director, Caravella Football Academy is a commercial tenant of Dangan and the two operate as two different entities with separate ownership and beneficiaries.
[16] It was submitted by the Respondent that Caravella Football Academy was joined by FNQ Dance Academy, Next Level Training Academy (a fitness studio), Nexus Martial Arts and Pizza Loca Cantina, together forming “The Grounds Cairns” sporting precinct (Dangan) in 2019/2020. To use the football fields occupied only part time by ZenKat Family Trust (Caravella Football Academy) and to create another form of revenue, Dangan commenced holding “FNQ 5’s” at The Grounds, a social soccer competition that ran at different times of the year for all ages. This was to create another income stream of the facility.
Caravella Football Academy
[17] The Respondent submitted that Caravella Football Academy provides a coaching service to children between the ages of 3 to 15 to help improve their football skills. It was founded by Zenon Caravella who conducted a significant portion of the training sessions and is supported in his role of “Head Coach” by skilled “hobby coaches” to assist with coaching sessions. The Respondent contended that these football enthusiasts have full time careers elsewhere and work between 1-2 hours a week on an “opt-in” “opt-out” basis depending on their availability. The hobby coaches sign a hobby supplier form and are paid by the session.
[18] The Respondent submitted that the only link between the three entities mentioned in this document is by the sharing of one of several Dangan directors.
The common director: Zenon Caravella
[19] The Respondent submitted that Zenon Caravella became a Director of Caravella Backpackers and Dangan Pty Ltd in 2016 after the unexpected passing of his father and to assist his mother in the management of the business which she had run with her husband for several decades. While being one of several directors of R&J and Dangan Pty Ltd, the ultimate controlling financial interest is held by Julie Caravella. The Respondent submitted that Julie Caravella has no ownership in ZenKat Family Trust. ZenKat Family Trust (Caravella Football Academy) is owned and operated by Zenon and Katherine Caravella and at the time of the Applicant’s termination, employed no staff.
Caravella Backpackers and Dangan Pty Ltd
[20] The Respondent submitted that following the COVID lockdown in 2020, where both Caravella Backpackers and Dangan (The Grounds Cairns) were forced to close, the only employees that were shared between R&J and Dangan Pty Ltd were Peta Britton as finance/administration and Bambang Suprainto, a maintenance employee whose hours were shared between properties when required.
[21] The Respondent’s submission was that the Grounds Cairns had only been in operation for just over 12 months and was still establishing itself structurally and financially before the closure. Prior to COVID, The Grounds Cairns had one full time manager and one cleaner. Both positions were made redundant due to the financial im-pact of the four months COVID closure.
[22] It was submitted by the Respondent that when Dangan was able to resume operations after COVID restrictions eased, a cleaner was appointed and was shared between both entities (Dangan and R&J) to ensure enough work was available to that employee given the continued closure of R&J’s primary business of back-packer accommodation. This alleviated some pressure for both businesses while guaranteeing hours for a more suitable employee. When restrictions eased, Caravella Backpackers reopened on skeleton hours to help service fixed expenses in the extremely trying business conditions of tourism, with international borders still closed.
The Connection Between Dangan Pty Ltd and ZenKat Family Trust
[23] As noted earlier, the Respondent submitted that Caravella Football Academy is a paying commercial tenant of Dangan Pty Ltd and receives no financial benefit in the way of services by Dangan (The Grounds Cairns) as there involves different ownership, management and financial beneficiaries for both entities.
[24] The Respondent stated that in the instance of the sharing of staff, this is simply put down to:
• Same location (The Grounds Cairns); and
• The ability to increase hours for individuals while in COVID recovery, with each entity paying for the time separately.
[25] The Respondent submitted that due to the close proximity of all the separately owned tenancies at The Grounds Cairns, that there have been instances where staff that work in one tenancy also work in another. For example, the restaurant of an evening and the martial arts studio by day. The tenants also use many of the same service providers such as signage companies, web designers and photographers and again, this comes down to convenience of location/referral/relationships.
Determining Whether Referees Are Employees
[26] To operate the Social 5v5 (known as FNQ 5’s) competitions at The Grounds that run seasonally, the Respondent submitted that they utilise the services of teenagers (usually between 13-15 years old) that have obtained their referee licence who also work for other organisations in the region officiating. The Respondent submitted that the licence is a general pre-requisite/expectation for any work at The Grounds as the referees are largely left to officiate the social games utilising this qualification. Further, the Respondent noted that each referee at The Grounds Cairns fills in a “hobby supplier form” as directed by their accountant.
[27] The Respondent submitted that the referees were not engaged, nor have they ever been engaged, on a regular and systematic basis, nor do they have any expectation of employment (or vice versa) and so to consider referees employees is contrary to the definition. To summarise their position, the Respondent submitted that given the majority, if not all of the junior referees have obtained their referee licence they are considered "independent skilled specialists” with no supervision of the game in terms of “being told what to do as the game goes on”. It was submitted that they call it as they see it.
[28] Further, the Respondent stated that with The Grounds (FNQ 5’s) running seasonal tournaments, the referees are only asked to work during the timeframe of these tournaments, when available. Most if not all of them also officiate other tournaments/competitions in the region and are not exclusive to The Grounds Cairns.
[29] The Respondent stated that limited seasons and unpredictable schedules of these kind of competitions (which are not unique to the region or even, sport) combine to make it difficult to pursue officiating as a “career” or even regular “employment” with a single employer. It was submitted by the Respondent that referees tend to officiate on a per-event basis for a flat fee only when it suits them and their outside schedules. This flexible, long-standing and mutually beneficial relationship the officials have with all organisations that put on football tournaments have led the Respondent to view them as independent contractors and not employees.
[30] The Respondent submitted that most of the referees conduct referee training with the governing body of football in the region - FNQ Football (the zone) - outside The Grounds Cairns. Dangan/The Grounds are not associated with the governing body in any way. This zone is where the referees obtain their licence and where they are scheduled to officiate community/club competition games all over the region, separate to their work with us - a small, private operation.
FNQ 5’s
[31] It was submitted by the Respondent that due to the seasonal nature of “FNQ Fives” at The Grounds Cairns, the “peak” periods are in community football off-season (between October and February) and the “off-peak” periods are in community football in-season (between March and September). The determination of what competitions go ahead are dependent on the registrations that they receive, which is never guaranteed.
[32] Generally speaking, the Respondent submitted that in peak periods they have up to four social competitions running for 14 weeks (3 for adults and one for juniors). In off-peak periods they have up to three senior competitions running at 10 weeks per season. They have 2 week breaks during school holiday terms and then a large 8 week break during Christmas and New Year. Overall, they are running competitions for 34 out of 52 weeks of the year but again this is only dependant on registrations at the time. The format for each competition is two x 20 min games per team on a weekly basis.
[33] The referees are paid on a “per 20 min game” basis as per their availability and with the under-standing that they may “opt out” at any time. The referees are paid $12.50 per 20 minute game for senior social games and $10 per 20 minute game for junior social games.
[34] The Respondent noted that as they privately run, social competitions were not sanctioned by a governing body, the Respondents are not obligated to use qualified referees for these competitions to run, nor do they have to use referees at all to support this part of their business. At the moment, the Respondent’s preference is to use skilled, qualified junior referees but this model can and may change given the unpredictable nature of the availability of referees.
A comparison – similar local competitions
[35] The Respondent raised that there are several local small, sided competitions in far North Queensland. These competitions are generally held by both community organisations and private businesses. In Cairns, there is another private entity that holds a 5v5 summary competition each year. The Respondent advised that there are also local clubs, the Futsal centre as well as other sporting codes that run competitions – seasonal or otherwise – using junior referees.
[36] The Respondent advised that the competitions held by the organisations, as mentioned, use a mix of volunteers, teenage referees, coaching staff and parents of children. Some are paid, whereas others are not but the competitions ran regardless, such is the social nature of them.
[37] Overall, the Respondent submitted that these social competitions are prevalent across all sports, particularly in the off-season, with the main idea is to provide a fun, safe place for kids and adults to play sports and keep active. If referees were found to be classified as “employees” with Dangan, the Respondents questioned whether every teenage referee that is paid per game, across all sporting organisations (community, amateur, private or otherwise) also be classified as employees and would they be entitled to the promise of future employment and the right to claim unfair dismissal once that competition ends?
“Opting in/out”
[38] The Respondent submitted that since the inception of FNQ 5’s, managing the referees and their availability / reliability has always been challenging. The Applicant also knows this well. The Applicant had to step in and referee on countless occasions, called upon a director to help out many times, was constantly scrambling around making phone calls looking for referees and at one point, even asked an unqualified 12 year old girl (at the last minute) to officiate a senior game, despite this going against their duty of care when officiating adults.
[39] The Respondent provided screenshots of text messages sent by the Applicant to Ms Caravella, noting the difficulty of looking for referees. In an email sent on 25 January, the Applicant wrote:
“Hi Kat,
Hope
You had a good weekend .
I was wondering if this week can do a fb post about refs I’m really looking for refs desperately as I think as off next week I will be 2 short on Thursday’s and have no one to cover at all .
Thank you”
[40] On 12 January, the Applicant wrote to Ms Caravella, stating:
“Think I’m going be desperate for refs can we do a bit of a push this week on social media please lost Brighton , Lachy , Aaron D and Morgan”
[41] The Respondent referred to the current three running competitions (on Monday, Wednesday and Thursday nights) as a way of painting an accurate picture of how referees may opt in or out to officiate. For example, one referee may only be available on Monday for the upcoming week and as the games are played in two time slots (6:30pm and 7:00pm), they will only be able to officiate two games for the week, earning them a maximum of $25 for that night. Another example provided by the Respondent was in respect to a referee that may be available for all three nights (meaning they can officiate two games a night) earning themselves a total (and maximum) payment of $75 for that week.
[42] As it stood, the Respondent stated that most a referee can earn at present, during off season, is $75 with all the competitions running and as little as $12.50 for a single game. This may increase in the peak period with the annual 14 week junior competition taking place in summer. By way of extending this example, the Respondent advised that the above referees may not be available at all the following week due to injury, school camp, football commitments, social commitments, homework or exams, representative sport, etc, but may contact us to “opt back in” whenever they are free.
[43] The Respondent further noted it is common for referees to advise they are unable to officiate a game at the last minute, with no reason at all.
FNQ FIVES: Peak / off-peak
[44] The Respondent advised they are currently in “off peak” season at FNQ Fives as regular community football season is on. This makes not only securing referees difficult (as they are training in their football teams of an evening or officiating competitive games outside the Respondent’s organisation) but it means the Respondent are running less competitions with less playing numbers, as many have committed to community “club” football outside of their facility.
[45] At the time of the Applicant’s termination, the Respondent advised they were firmly in “peak” season where their annual 14 week junior competition was on and the list of available referees was broader as community football was out of season. However, this did not ensure the reliability of these referees, even with the increased number of available referees the Respondent continue to struggle with no-shows and commitment issues.
[46] At the time of the Applicant’s termination, the Respondent had a rotation of 8 referees for that week but could have as few as five for the fortnight.
Number of employees according to the Respondent
[47] The Respondent’s submitted that the total number of regular employees between the Respondent, the Caravella Backpackers and Caravella Football Academy is five (5). This figure consists of the following individuals:
R&J Caravella Family Trust (Caravella Backpackers) | |
Peta Britton | Accounts Manager |
Sumi Doyle | Cleaner |
Bamband Suprainto | Maintenance |
Dangan Pty Ltd (The Grounds Cairns) | |
Vanessa Hoedlmayr-Wales | Administration |
Ryan Murray | Tournament Coordinator |
ZenKat Family Trust (Caravella Football Academy) | |
No employees | |
[48] The total number of referees the Respondent had engaged, and paid, during the week in which the Applicant was terminated was eight (8). This consists of the following individuals (surnames redacted):
• Brighton
• Connor
• Luca
• Luke
• Liam
• Floyd
• Flynn
• Ramsay
[49] Based on the Applicant’s submissions below, and the season roster he considered there were other referees engaged, but not named in the Respondent’s submissions. Rather, the Respondent only names those who were paid in the week in which the Applicant was dismissed. Therefore, there may be more individuals employed in the pool of casual employees engaged on a regular and systematic basis, but not paid in the week of the Applicant’s dismissal. These causal employees would also be taken into account in assessing whether the Respondent is a small business employer.
[50] The total number of coaches engaged at the time of the Applicant’s termination was four (4). This consisted of the following people (surnames redacted):
• Josh
• Darcy
• Pasco
• Nathan
[51] The Applicant referred to a list of 6 coaches.
Witness Statement of Peta Britton
[52] Ms Britton is the Accounts Manager for R&J Caravella Family Trust (Caravella Backpackers). Part of her role, Ms Britton advised that she is also responsible for financial matters relating to Dangan since late 2018.
[53] Ms Britton advised that the relation between Caravella Backpackers and Dangan is connected by both the sharing of directors but also with R&J providing financial support to Dangan and contracting key staff to Dangan for operations. Ms Britton stated that Mr Caravella became a Director of Caravella Backpackers and Dangan in 2016. However, Mr Caravella is one of the several directors with the ultimate controlling interest being held by Julie Caravella for both Caravella Backpackers and Dangan.
[54] Ms Britton stated that initially, the only employee shared between the two entities were herself as the finance/administration and maintenance employee. When Dangan was able to resume operations after COVID, a cleaner was shared between both entities to ensure enough work was available to that employee, given the closure of R&J’s primary business of backpacker accommodation.
[55] When the Applicant was terminated in February 2021, Ms Britton advised the entities had six employees. With R&J Caravella Family Trust, there was herself, Sumi Doyle (Cleaner), Bambang Suprainto (Maintenance), and Vanessa Hoedlmayr-Wales (Casual Front of House). At Dangan, it was only Ms Hoedlmayr-Wales and the Applicant. Ms Britton advised that Ms Hoedlmayr-Waynes was primarily employed by Dangan but assisted at R&J Caravella Hostel for casual shifts when needed.
[56] Ms Britton advised that there have been discussions around the referees that were paid on a “per game” basis by Dangan being classed as employees. Ms Britton advised that these referees have never been viewed or treated as employees. The referees are generally secondary school students who have completed their referee licence and a Statement by a Supplier Form. The referees advise what games or days they wish to officiate, which may change on a week to week basis. Ms Britton advised that prior to commencing the tournaments at The Grounds, advice was sought from their accountant as the correct way of making payments to referees. Based on their recommendations, the Respondent engaged the Referees as suppliers and treated them as such given their general qualifications and expectations.
[57] It is of Ms Britton’s view that the commitment from these referees do not match in with what is expected from an employee as there is frequently no shows, last minute withdrawals, etc. With the referees being school students, they may not be available for weeks, or months, on end for reasons such as school camp, exams, representative sport, injury, social commitments and many more. Ms Britton advised that these referees treat their time at Dangan as a hobby and an easy way to earn some extra money without the commitment of a job. The referees are viewed by the Respondent the same as other sporting competitions, including community sport, where they provide a service on a per game basis and no further requirements or expectations are in place.
[58] Ms Britton advised that tournament dates change and are seasonal so there is no expectation of ongoing work. She explained that work is only available when they have enough registrations to run tournaments. Ms Britton stated that the Respondent only trade during the school terms and so there are significant periods of no games on at all such as an eight week hiatus during Christmas and 2 weeks of school holidays during the regular year. Ms Britton conceded that parents pay for coaching and games for the season and those coaches and referees engaged had any expectation of work across the season, Mr and Mrs Caravella and Ms Britton stated that there was flexibility with the young referees given they often had other commitments.
[59] Ms Britton identified the following individuals who were paid by Dangan the week of the Applicant’s termination:
• Brighton Ilic
• Connor Campbell (who was never meant to be a referee, however just helped out last minute due to a referee not attending)
• Connor Bell
• Luca Mauro
• Hayley Campbell (who was never meant to be a referee, however helped out last minute due to a referee not attending)
• Luke Loeskow
• Liam Hinspeter
• Floyd Chigeza
• Flynn Chigeza
• Ramsey Wilson
[60] Ms Britton further mentioned that the number of referees required at the time of the Applicant’s termination was also increased due to it being a seasonal “summer” competition that occurs annually in the off-season.
[61] In relation to the Caravella Football Academy, Ms Britton advised that this entity is owned and operated by Mr Caravella and Ms Caravella. The connection to Dangan and R&J is through Mr Caravella being the Director of both of these entities. Ms Caravella has no ownership of either R&J or Dangan. Ms Britton advised this is a deciding factor in why each of the entities are treated separately due to the differing parties involved in each.
[62] Ms Britton advised that CFA was founded in 2015 as an entity separate from R&J. CFA utilises Ms Britton’s services in accounts and pays for that time to R&J. This arrangement was established on commencement of her employment to allow the position offered to be permanent part-time with more hours to secure a suitable applicant. Ms Britton explained that previously, CFA engaged an external bookkeeper and so to secure her services, she was offered the additional work with CFA given they shared a location (The Grounds). Having said that, Ms Britton stated there was no reliance from CFA on the other entities to support its business.
[63] Ms Britton understood that CFA is a commercial tenant of Dangan and trains at The Grounds. It is one of several sporting tenants of Dangan all separately owned and operated. CFA provides a coaching service to children between the ages of 5 to 15. Mr Caravella conducts the bulk of the training sessions and engages various other individuals to assist with sessions, where an average session is about 45 minutes to 1 hour. However, the most a current coach assists in is 2 hours a week on an evening. Ms Britton advised that the coaches that conduct sessions for CFA have full time careers elsewhere and coach 1 or 2 sessions a week, generally because they are passionate about the sport and development of players.
[64] Ms Britton stated that there is no reliance on these coaches as employees as they dictate their availability around their work and personal lives. Coaches complete the Statement by a Supplier classing their coaching activities as a hobby. They have no expectation of ongoing or regular work with the CFA. Ms Britton advised that the Applicant was offered the option to coach for CFA as he had raised concerns that he was struggling financially with the stand down of his full time employment by his sponsored employer, Happy Travels, and the limited hours offered with Dangan. It was decided that the Applicant would be paid for his coaching sessions by Dangan in his fortnightly pay and Dangan would invoice CFA to recover that costs. The Applicant would submit his timesheet specifying whether his hours were for Dangan and which ones for CFA, and Ms Britton advised she would pay this accordingly as his CFA coaching hourly rate was higher than his award hourly rate.
[65] Ms Britton identified four coaches that were actively coaching CFA on the week of the Applicant’s termination. This being Josh Taylor (a High School teacher), Darcy McCormack (a Primary School teacher), Pasco Rogato (a Corporate Employee of Cairns Council) and Nathan Haydon (a High School teacher).
[66] It is of Ms Britton’s genuine belief that neither the referees nor coaches can be considered employees as per the definition. Ms Britton stated that there was no expectation for ongoing or regular systematic work from either party.
[67] The seasonal roster referred to by both parties challenged this. It shows a roster for referees for the games.
Witness Statement of Katherine Caravella and Caravella Football Academy
[68] Ms Caravella is the director of ZenKat Family Trust, which owns Caravella Football Academy (CFA). CFA is also a commercial tenant of The Grounds Cairns. Ms Caravella advised that she is also the wife of Mr Caravella, who is the director of both ZenKat Family Trust as well as Dangan.
[69] Ms Caravella advised that CFA was established in 2015 and was operating from a community club in Cairns until The Grounds was purchased and built in 2018/2019 by Dangan. CFA came on board as the first commercial tenant of Dangan. Ms Caravella advised that with the primary intention of The Grounds to become a full tenanted commercial property, CFA effectively became the first tenancy and FNQ Dance Academy, Nexus Martial Arts, Next Level Training Academy and Pizza Loca Cantina followed suit, thus competing the “sporting precinct” model envisioned for the property.
[70] Ms Caravella advised that CFA is proud to offer skilled individuals the opportunity to coach children the game of football at grassroots level and beyond. While CFA could certainly operate with less coaching staff, the opportunity to involve individuals of different voices and skillset is beneficial not only for the children but also the coaches who enjoy making a difference to children’s lives, not just through player development but general life skills.
[71] Ms Caravella stated that coaches are not appointed or treated as employees. Ms Caravella is aware that their main employment will always come first as much as they are aware that they are able to increase/reduce/delete coaching sessions available according to what the business requires at any given time. In summary, Ms Caravella advised that CFA offers the coaches the opportunity for hobby coaches and football enthusiasts to be involved and be paid for something they enjoy. CFA also offers the opportunity for players to receive coaching from other coaches/voices/skilled individuals that are passionate about the game. Nonetheless, Ms Caravella is of the view that there is absolutely no such reliance on these coaches for CFA to survive, operate or thrive.
[72] Furthermore, Ms Caravella advised there are four active coaches at CFA at the time of the Applicant’s termination from Dangan. Ms Caravella identified the same individuals as Ms Britton but noted the level of frequency of each coach per week. This is identified below:
• Josh is a Senior High School teacher, engaged for two sessions per week;
• Darcy is a Primary School teacher, engaged for three sessions per week;
• Pasco is a Corporate Employee at Cairns Council, engaged for two sessions per week; and
• Nathan is a High School teacher, engaged for two sessions per week.
[73] Ms Caravella advised that all four coaches have significant playing and/or coaching experience in Football, competent coaches in their own right and do not require ongoing training or management. The coaches are largely left to their own devices and conduct/deliver their own sessions with their own session plans. The above coaches are at the academy for a combined 9 hours a week and are paid per session.
[74] Ms Caravella further noted that all four coaches conduct some level of coaching at other organisations, as an aside from their work with CFA. For example, Josh Taylor is the Head Coach of a Football Excellence Program at Cairns High School. Darcy McCormack and Nathan Haydon are also involved as coaches and selector at School Sports. Pasco Rogato is involved in coaching at Leichhardt Lions Football Club and has been for many years. Ms Caravella advised that these roles are outside of the CFA organisation.
[75] The coaches inform CFA whenever they are or are not available. Ms Caravella stated there is no expectation of continued work as they are well aware that player numbers fluctuate at the academy and some sessions may not become feasible to run at any given time. The Coaches also regularly inform CFA of outside commitments which may prevent them to coach, and do not need to request permission or leave to miss training (such as to attend a wife’s birthday, work meetings, or events).
Submissions in reply
Associated Entity
[76] The Respondent noted it is of the Applicant’s view that CFA is an associated entity of the Respondent. The Respondent does not dispute that Mr Zenon Caravella is the common director of CFA and The Ground Cairns. The Respondent further accepted that CFA operates from the same premises, however, noted that so does five other separately owned (and permanent) businesses including FNQ Dance Academy, Next Level Training Academy, Nexus Martial Arts, Pizza Loca Cantina and other sporting businesses hiring the facility on occasion, such as Billy’s Buddies. The Respondent also stated that Ms Kat Caravella had described her involvement in Dangan as a volunteer with no ownership or financial say.
[77] The Respondent does not dispute that there has been shared staff between Dangan and CFA. Whilst the Respondent is unsure where the Applicant had obtained the figure of “around CFA 75 players” in his submission, the Respondent advised there were also countless players that attend Next Level Training Academy, eat at Pizza Loca Cantina and attend Nexus Martial Arts. The Respondent advised that this is the nature of the communal sporting hub that is The Grounds. However, this would not make all separately owned business and tenancies, who share the same clientele, as being associated entities.
[78] The Respondent advised that the Applicant’s payslips, in relation to him acting as a coach for CFA, clearly highlight “CFA coaching” with different hourly rates to their role as Tournament Coordinator with Dangan. Dangan would then invoice CFA for the Applicant’s time. The Respondent argued that if the entities were related, they would have the same hourly rate.
Referees
[79] The Respondent advised that the emails referred to, and attached to, the Applicant’s submissions were undated and were without a recipient email address. The Respondent described them as “screenshots” of emails he claimed to have sent from his person email address from the previous manager. Without a date of the correspondence, the Respondent assumed that the emails were prior to March 2020 (before the first wave of COVID in Cairns). The Respondent advised that there have been many changes to the business since this time, including the use of “same pool of referees”. The Respondent then referred to an email correspondence from Mr Glen Waddingham sent to parents and referees, where they submitted that the email demonstrates a clear “opt in” and “opt out” system in place. The email states as follows:
“Good Afternoon Parents and Refs
I have attached the roster for the next two weeks of reffing.
Can you please look over the times and email me if you are unable to do any days.
Thank you all for doing a great job.
Kind regards,
Glen Waddingham
The Grounds Cairns”
[80] The Respondent noted that the Applicant refers to be “praised by director” and includes a screenshot of an email sent to him regarding his correspondence. The Respondent submitted that this email was not sent by a director of Dangan but rather, Ms Caravella, who was helping to oversee his work during the COVID recovery period. The Respondent included the full excerpt of the “praise” in which the Applicant referred to from an email dated 19 January 2021, as below.
“I wanted to identify key strengths and things to work on which have been identified over the last few months:
Strengths
- On-site tournament running (scheduling, regs etc)
- Coaching
- Good temperament/manner with kids
-Payment collection
Things to work on
- General communication (asking for things, not telling/expecting them from fellow staff)
- Email manner (Pay extra attention to grammar, thank you for your email, kind regards etc)
- Try and always acknowledge people – even if it just a hello, smile, nod
- Efficiency – are you using all your admin time in the office wisely? What are you doing in these hours when emails/draws have been done? If your work is done is there something else you can do – approach daycares, sponsors, tidy up spreadsheets etc”
[81] The Respondent clarified that the reference to “scheduling” in the feedback email is in respect to competition draws and obtaining referees for these games. The Respondent also noted that the Applicant was not “praised” in his performance feedback and raised that the Applicant had carefully omitted what follows “things to work on” in the screenshot provided by him. The Respondent advised that the feedback was sent as a follow up to a meeting where the Applicant requested a very significant increase of wages due to another “job offer” and “potential promise of a visa”. Nonetheless, the Respondent questioned the relevance of his performance feedback in respect to the referees being considered as employees.
[82] The Respondent further questioned the Applicant’s count where he was “oddly specific” when he mentions 128 games per week. By way of example, the Respondent advised that in the fortnight prior to the Applicant’s dismissal, only 20 games were paid to referees, and the following fortnight was a total of 118 games for that two week period. The Respondent further stated that what the Applicant failed to mention was that each game were 20 minutes in length and the number of games is heavily inflated during the peak period of 14 weeks of the year. This is vastly different to the “off-peak period, and the Respondent thereby argued that the Applicant’s statement was misleading.
[83] The Respondent referred to an email sent from the Applicant to the Accounts Manager, Pita. The Respondent advised that this email demonstrates that in the fortnight, referees officiated only 36 games. Only five referees were used in this entire fortnight, demonstrating that it would be impossible to guarantee work to any referee given the fluid and fluctuating nature of the social tournament schedule at The Grounds. The email states as follows:
“Hi Pita,
Please see attachment for my timesheet. I haven’t done any 1-1 this week due to my ankle.
Refs last 2 Week games-
Connor Bell – 12
Ramsay- 8
Lachy – 4
Luke L – 4
Morgan – 6
Zenon (nice little bonus) – 2
I also need to claim a taxi and uber when my car was in the garage.
[84] The Respondent accepted that there is some kind of “scheduling” required to make the games happen with the current system. However, the Respondent argued that each of the referees were not engaged on a regular and systematic basis.
[85] The Respondent noted that the Applicant referred to “same pool of referees” when supporting an “inference regular and systematic work”. The Respondent argued that the Applicant’s own evidence contradicts this. In the roster created by the previous manager, supplied by the Applicant and what was assumed to be created in March 2020, only 2 of the 14 referees officiating back then were officiating at the time of the Applicant’s dismissal in February 2021. To elaborate on this, the Applicant referred to the following referees in his submission as “current” at the time of his termination: Flynn C, Floyd C, Brighton L, Luca M, Luke L, Connor B, Ramsey W, Liam H, Morgan S and Aaron D. The Respondent advised that “Morgan S” and “Aaron D” had moved to Brisbane well before the Applicant’s dismissal in late 2020. This can be verified not only by pay receipts, but also the Applicant’s own admission via the text message sent to Ms Caravella on 12 January at 11:11am (see above).
[86] Further to this, the Respondent advised that the pool of references has altered again as Luca M, Luke L, Ramsey W, Flynn C and Floyd C all ceased officiating at the end of the peak season in March / April 2021 due to other commitments. Of the names listed, the Respondent advised that only Connor B and Brighton have been available throughout the year and a whole new pool of referees have made themselves available. The Respondent stated that this is just an example of how fluid the nature of the referees is at their facility and region.
[87] In addition, the Respondent noted that the Applicant’s submission in that “without referee employment The Grounds Cairns would not be able to offer a 5 a side football, a huge income for their business”. The Respondent submitted that this is an incorrect assumption and is entirely false. The Respondent explained that Dangan receives income from several sources and while the social tournaments is one of them, there is no reliance on referees to continue to run the tournaments successfully. Such is the unreliable nature of the referees, and given they are a private operator not having to adhere to any “guidelines” regarding referee qualifications etc, they have previously explored: reducing team fees so that each team supplies a referee at one point during the season; offering senior players a meal and beverage during their “BYE” games to officiate; and offering more games to less referees, preferable but not likely in their experience. The Respondent also mentioned that when in instances where they have had 3 out of 5 referees do not show up to an evening, the Dangan director, on-site coordinator or a player had filled in the role. The competitions are social and not competitive in nature, and the Respondent advised they are able to change the structure at any time.
[88] The Respondent agreed with the Applicant in that the referees are qualified referees and indeed “kids with no ABN” who fill in a “hobby supplier form”. The Respondent also agreed that the referees wear The Grounds uniform. However, the Respondent advised that this is merely so they can be identified. The referees also wear “Football Queensland” uniforms (where they are trained and generally officiate most of their games during the community club season) and “Redlynch Futsal Centre” uniforms when they officiate at Futsal and any other uniform they are asked to wear depending on the organisation. The Respondent advised that the referees also use their own whistle and smart phones when entering scores into the Respondent’s mobile application.
Coaches at CFA
[89] The Respondent agreed that The Grounds Cairns and CFA supply all equipment, stating that it would be impossible for coaches of CFA to “bring their own human size goals” or “large equipment” when there is ample amount of equipment to go around.
[90] The Respondent, however, contested the Applicant’s submissions that the coaches run weekly during school curriculum and that parents sign up to be with the same coach. The Respondent advised that while CFA do run in school terms (not “curriculum), parents do not sign up to be with any coach and never have done so. Players sign up to the “Caravella Football Academy” and are graded and placed into a squad that suits their ability. The Respondent provided a screenshot of the CFA registration page, which stipulates:
“Academy grading
I have read about and understood the grading process and accept the Coach’s decision is final as a rule.
I understand that I am registering the Player for a spot at the academy and that he/she may be separated from friends and teammates depending on grading.”
[91] The Respondent further stated that Coaches are offered work based on their skillset as experienced footballers and coaches. There is no ongoing direction and training given by Mr Caravella unless a Coach sought advice which rarely happens. The Respondent did agree that Ms Caravella managed the business as an owner.
[92] The Respondent advised that the CFA schedule is adjusted every 10 weeks, and coaches adjust their availability at their discretion, even within a term if their circumstances change. The Respondent submitted that there is no set commitment from any coaches other than the days they “opt in” at any given time. The Respondent also advised that coaches wear the uniform so they may be recognised as a coach on duty, much like any casual worker working within a business for identification purposes. The Respondent stated that the children need to recognise who a coach is as do parents when seeking to speak to an adult on duty. Coaches supply their own football boots as coaching is a skill, demonstrate exercises using their expertise, qualifications and playing experience.
The Applicant as a “former CFA coach”
[93] The Respondent noted the Applicant’s statement where he raised his experience as a former CFA coach. The Respondent refuted the Applicant’s submission that all academy coaches would undertake training under Mr Caravella prior to being paid for the job. The Respondent advised that coaches are appointed based on their experience and only work with Mr Caravella for one or two sessions for quality control purposes. Mostly so Mr Caravella could assess how they would interact with children. The Respondent further noted that the coaches are paid for the sessions with Mr Caravella.
[94] The Respondent agreed with the Applicant’s submission that CFA supplies, to coaches, with cones, balls, bibs and other equipment, including uniform. However, the Respondent denied the Applicant’s submission that there was no flexibility in working hours. The Respondent stated that the Applicant was asked what days he was available to coach and he opted in or out. It was not part of his job with Dangan and he was well aware of this. The Applicant was offered coaching to assist his financial struggles he regularly mentioned. The Respondent advised that when asked to work with Mr Caravella at Whitfield State School at 7:30am on one occasion, the Applicant responded that, with words to the effect of, “that doesn’t work with my schedule”. On another occasion, where the Applicant was asked to work at 5:10pm to assist Mr Caravella at The Grounds, the Applicant advised, words to the effect of, “I am not coming there for one hour, it is not worth it for me.”
[95] In an email dated 2 February 2021, the Applicant wrote to the Respondent:
“Another point is that on Monday i would like to start at 3PM so I can do Eric at 4PM please let me know if this is alright with you guys.
Also please be aware that I’m about to accept to coach SAP under 11/12 girls again this will be on a Tuesday 5:30-6:45 so therefore won’t be able to assist with Zenon on a Tuesday.”
[96] The Respondent explained that Eric was a CFA player that organised 1v1 coaching with the Applicant directly (day and time included). The Applicant had accepted a coaching job with Football Queensland while he was working with Dangan and CFA, and therefore “opted out” of coaching with Mr Caravella. The Respondent submitted this contradicted the Applicant’s statement that that there was no flexibility in working hours, and that Ms Caravella would issue individuals with days and hours required of them to commit to.
[97] The Respondent also denied the Applicant’s submission that CFA is run by other coaches as it would be impossible for Mr Caravella to coach everyone and that the website advertises that there is one coach for every ten children. The Respondent advised that the website is outdated. CFA now has a 1 coach to 14 children rule. Secondly, the Respondent advised with a current cohort of approximately 200 players, Mr Caravella could coach for 14 hours a week and cover each player and squad currently at the academy. All would be required is a charge of schedule and structure which would not only be easily done but would potentially mean the academy would thrive with the Head Coach and namesake coaching players of all level (and not having to pay coaches, which would be beneficial financially). The Respondent advised that CFA have previously said that while they are not “reliant” on other coaches, they embrace the opportunity to employ suitably skilled individuals with different voices to be part of CFA when their schedule permits.
[98] The Respondent advised it is unsure what the Applicant meant by “the business is run by other coaches” when the Applicant has spent his whole submission stating that the business is run by Mr Caravella and Ms Caravella with “full direction, training and management”. While CFA appoints skilled coaches to assist with coaching, the Respondent submitted that the bulk of coaching is done by Mr Caravella with the support coaches working between one or two 60 minute sessions each week, at most.
The Applicant’s submission that “Referees and coaches are employees”
[99] In addition to their submissions above, the Respondent referred to the below extracts from the Fair Work website:
“Independent contractors usually negotiate their own fees and working arrangements and can work for more than one client at a time. Independent contractors are often called contractors or subcontractors.
Whether a worker is a contractor or an employee is determined by the nature of the relationship, not what the arrangement is called.”
[100] The Respondent submitted that while they do offer a “fee per game”, in line or similar with other similar entities in the region, the rest of the above extracts are the true nature of work for the referees and coaches. The nature of their employment is not systematic, regular and they may opt in and out when they are available, contrary to the definition of an employee.
[101] In addition, the Respondent submitted that given the majority, if not all, of the junior referees have obtained their referee licence, they are considered “independent skilled specialists” with no supervision of the game in terms of “being told what to do so as the game goes on”. The junior referees call it as they see it. The Respondent advised that the same could be said for coaches. Coaches formulate their own session plans and execute according to their own coaching style and knowledge.
[102] The Respondent advised that limited seasons and unpredictable schedules of these kind of competitions (which are not unique to the region or even, sport) combine to make it difficult to pursue officiating as a “career” or even regular “employment” with a single employer. Referees tend to officiate on a per-event basis for a flat fee only when it suits them and their outside schedules. The Respondent submitted that this flexible and mutually beneficial relationship the officials have with all organisations that put on football tournaments have led the Respondent to view them as independent contractors and not employee. The Respondent submitted the same can be said for coaches. Coaches are free to accept work in other areas of football and opt in and out of work offered by CFA.
Employee Count
[103] The Respondent questioned the change in the Applicant’s count of employee, where it initially was 26 and now 21 employees. The Respondent denied that “Bam” and “Sunni” (incorrect spelling) are employees of The Grounds.
[104] The Respondent further advised that two referees identified by the Applicant as part of the employee count had moved to Brisbane in late 2020. The Respondent also noted that Francesco and Nicholas were not paid for services at the time of the Applicant’s termination. For clarity, the Respondent advised the individuals who were paid, either as a staff or for their services, at the time of the Applicant’s dismissal, from both related entities being Dangan and R + J Caravella Family trust, comes to a total of 18 individuals. These individuals are identified above.
Public Interest
[105] The Respondent argued that Lake DP’s decision in this matter was quashed and thereby should not be considered.
[106] It must be noted that the only reason it was quashed was that a hearing was required, and not held. The decision proper in terms of the determination was not considered.
[107] The Respondent submitted that there is a significant publish interest in this matter and the Applicant has not responded to this in any detail. The Applicant further does not explain why there is “no public interest” but merely claimed “there is none”. The Respondent advised that to accuse Dangan as trying to “structure out business in a way to avoid out obligations” is not only false but highly offensive. The Respondent advised it prides themselves on being fair employers and will not accept this accusation without adequate evidence of this from the Applicant.
[108] The Respondent submitted that the reality is that this is a unique matter, that it involves:
• Separate entities that share the same sport, location and one director for CFA and Dangan;
• Separate entities that share the same large facility and at time, clients (The Grounds Cairns facilitate for FNQ Dance, Nexus Martial Arts, Pizza Loca Cantina, Next Level Gym, Caravella Football Academy);
• Children that opt in and out at their discretion to officiate games for Dangan while also officiating other games for other organisations in the region and beyond; and
• Skilled individuals that opt in and out at their secretion to coach children for CFA while also coaching for other organisations.
[109] The Respondent explained that it would prefer to appoint less referees that are available more regularly as this would assist the tournament component of their business greatly. However, due to the nature of the work available, and the varied commitments outside of The Grounds (including with several other similarly run organisations), this would be an unlikely prospect.
The Applicant
[110] The Respondent submitted that the Applicant was a part time employee of Dangan who had very little knowledge of the structure of any of the businesses in question. The Applicant’s role was a part time “Tournament Coordinator” and was largely responsible for compiling draws, organising referees and managing the competitions on site. The Applicant had very little, if anything to do with any of the business operations of any of the entities in the seven months he was employed, and has admitted so in an email dated 18 August 2021 to Chambers of VP Catanzariti, as stipulated below:
“I hope this this information will assist with your enquiries and whilst I agree with the comments of Dangan that I did not have full knowledge of the employees associated with other aspects of their business the information I have provided previously and that also contained within this email are entirely based upon my experiences and knowledge obtained during my time employed by them”.
[111] The Respondent submitted that much of the Applicant’s submission and affidavit is uninformed and false statements without any substantiating evidence.
SUMMARY OF THE APPLICANT’S MATERIAL
[112] The Applicant contested the Respondent’s evidence, stating that it is his belief that the Respondent engaged more than fifteen employees. The Applicant stated that the Respondent and Caravella Backpackers are an associated entity which operates collectively as “The Ground Cairns”.
[113] The Applicant argued that the Caravella Football Academy is also an associated entity which conducts its business from The Ground Cairns. This is based on the following grounds:
• The Caravella Football Academy and Dangan share a common director being Mr Zenon Caravella.
• The Director of Caravella Football Academy is involved in the day-to-day operations of both the Caravella Football Academy and Dangan.
• The Caravella Football Academy operates on the same premises as Dangan.
• There are around 75 children who attend the Caravella Football Academy and also attends the World Cup 5 a Side at The Grounds. Linking the two entities together.
• The Caravella Football Academy moved from community club to the Grounds.
• The Applicant’s payslip dated 28 July 2020 from the Grounds were associated with the work he performed as a coach for the Caravella Football Academy.
[114] The Applicant submitted that the referees engaged by the Respondent were not independent contractors but were casual employees that worked on a regular and systematic basis. The referees were engaged by a roster system where they received on-site management and training praised by the Director. The pool of referees remained the same, and without any referees, the Respondent would not be able to offer 5 a Side Football, which is a huge income for their business. The Applicant further advised that the referees wore the Respondent’s uniforms, and not their own.
[115] The Applicant submitted that the Coaches were engaged by the Respondent were also on a regular and systematic basis. The Respondent and Caravella Football Academy supplied all equipment for the Coaches. The coaching sessions ran weekly during the school curriculum, in which the parents signed up so they may be with the same coach. Directions and training for the Coaches were given by Mr Caravella and the management of the Coaches were run by Ms Caravella. The coaches work regular hours each week, and also wear the Caravella Football Academy uniform.
[116] The Applicant advised that as a former Caravella Football Academy coach, it was the Applicant’s experience that all Academy Coaches would undertake training under Mr Caravella for a few sessions before being paid to do the job. The Caravella Football Academy would supply the Coaches with cones, balls, bibs, uniform and other equipment required. There was no flexibility in working hours, where Ms Caravella would issue the Coaches with days and hours they must work. Coaches were also asked to commit to that day and time for regularity for coaching the children. The Applicant further advised that the Caravella Football Academy advertisement claimed that no more than ten children were assigned to each coach. The Applicant submitted that it would be impossible for Mr Caravella to coach everyone. The business is run by other Coaches, which highlights the need for these employees.
Referees and coaches are employees, not independent contractors
[117] The Applicant quoted, “Contractors run their own business and sell their services to others, unlike employees who work in someone else’s business. Contractors – sometimes called independent contractors, sub-contractors or subbies – generally use their own processes, tools and methods to complete the work.”
[118] The Applicant referred to the Full Bench case of Brendan Hempel v Northern Territory Air Services Pty Ltd, 3 where the Full Bench stated at [28]:
“The principles applicable to the determination of whether a person is an employee or an independent contractor have been well established in various court decisions, of which the High Court decisions in Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis v Vabu are of principal significance. The elements of the multi-factorial test which is articulated in those authorities were usefully summarised in the Full Bench decision in Jiang Shen Cai trading as French Accent v Rozario and need not be recited here. It is sufficient to characterise the task in applying the multi-factorial test as ‘a matter of obtaining the overall picture from the accumulation of detail’, which requires an ‘assessment and evaluation of evidence for the purpose of identification and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion’.”
[119] This case extract was set out in Lake DP’s decision and is relevant to the proceedings.
[120] The Applicant submitted that in reality, both the referees and coaches were casual employees of the Respondent and were engaged on a regular and systematic basis.
Employee count as at the date of termination Feb 2021 – 21
[121] As noted above, the Applicant contested the number of employees engaged by the Respondent at the time of his termination. In the Applicant’s view, the Respondent had engaged 21 employees. The 21 employees consist of 10 referees, 6 coaches and 5 administration and maintenance staff.
[122] The Applicant advised that the 10 referees were:
• Flynn C
• Floyd C
• Brighton L
• Luca M
• Luke L
• Connor B
• Ramsay W
• Liam H
• Morgan S
• Aaron D
[123] Consistent with [48] on the employer’s evidence, the last 2 referees have been removed, however commentary on this is provided in the consideration.
[124] The 6 Coaches consisted of:
• Josh Taylor
• Pasco Ragato
• Nathan Hayden
• Darcy M
• Francesco
• Nicholas T
[125] Consistent with the employer’s evidence, the last 2 coaches have not been included in the list.
[126] The 5 Administration and Maintenance staff of the Respondent were:
• Ryan Murray
• Vanessa H
• Peta B
• Bam
• Sunni
[127] In the Applicant’s submissions, the Respondent has simply tried to structure its business in a way to avoid their obligations under the Act.
CONSIDERATION
[128] The issue in question is whether the Respondent meets the definition of “small business employer”, and if so, whether the Applicant has met the minimum employment period of 12 months. The key question to be decided is whether the referees and the coaches can be classified as employees, this requires an assessment as to whether the referees and coaches were engaged on a “regular and systematic basis”.
Who is an employee?
[129] Section 23 of the Act provides that a “small business employer” is one that employs fewer than 15 employees at the time of the Applicant’s dismissal. Any casual employees engaged by the employer, and not engaged on a regular and systematic basis, are not to be included in the count. 4
[130] In the decision of Hansson v Bronze Hospitality Pty Ltd, 5 Wilson C cited Yaraka Holdings Pty Ltd v Giljevic (Yaraka) where the ascertainment of whether there was a regular and systematic basis to employment was considered:
“It is clear from the examples that a ‘regular… basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all…
Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic in the Macquarie Dictionary, revised 3rd edn, 2001).” 6
[131] The decision of Yaraka further set out that:
“Yaraka also held that it is the engagement of a casual employee that must be regular and systematic, not the hours worked pursuant to such engagement; that the term ‘regularly’ should be construed liberally, and that ‘systematic’ does not mean predictable. While so, ‘it is important to note that the Court did not say or suggest that the hours of work are analytically unimportant. Clearly, the days on which a person works and the hours worked on those days are relevant to the consideration of whether casual employment is regular and systematic, and whether, for the purposes of s.384(2) the person has a reasonable expectation of ongoing employment’. Further, ‘[t]here is no minimum period for which persons must have been employed on a regular and systematic basis in order to “count” for the purposes of s.23. All the circumstances must be taken into account.” 7
[132] In Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic, the Commission stated when establishing if the employees were engaged on a regular and systematic basis:
“[66] It is the employment which must be on a regular and systematic basis. This does not mean the hours or days of work must be regular and systematic… The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Gold, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish ‘regular and systematic’ there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.
…
[68] Full time, part time and casual employees often work on varying days and at varying times. Awards provide wide flexibility in this respect and further flexibility is available through agreements and through collective agreements. Under many awards ordinary hours can be averaged over a week, a month or sometimes longer periods; ordinary hours under many awards can be worked on any day of the week, and daily hours for full-time workers can vary under many awards from 4 to 12 hours. The fact that an employee works more hours in one week or one month than another and the fact that an employee might have variable start and finish times is not conclusive evidence of irregular, occasional, or non-systematic employment or engagement.
…
[75] I conclude from this that the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.
[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:
• The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and
• Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.
[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.
[78] If the hours worked over a lengthy period are similar to or exceed that of fulltime ordinary hours then this would also be strong evidence that work is being performed when offered and that work is being offered when available at the time parties know this is practical. Hence this would also be evidence of regular and systematic employment.”
[133] In conclusion, the Commission found that:
“…there was a clear pattern of work being offered with reasonable frequency and of the work being generally accepted. I find that work was being offered generally when it was available and that periods when work was less intense were generally when work was not available. I find that the employer had a reasonable expectation that Mr Ponce would work when work was offered. The pattern of offer and acceptance could not be described as informal, irregular or occasional. This is sufficient to find that the period of casual employment was on a regular and systematic basis.”
[134] In Shortland v The Smiths Snackfood Co Ltd, the Full Bench of the Commission stated:
“[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. 4 In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.
[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.
[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).
[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.
[135] In Greene v Hobart Historic Cruise T/A Hobart Historic Cruise, 8 the Commission considered whether the Applicant, was engaged as a casual and on a regular and systematic basis. The nature of the Applicant’s employment remained similar from 2008 to 2014, in which the hours varied in line with customer demands and seasonal consideration. Deputy President Abey considered other factors, such as the Respondent had regularly offered work to the Applicant (which was invariably accepted) and that the role was the only position in which the Applicant held during the time he worked for the Respondent. In consideration of all the evidence, Abey DP concluded that the Applicant was employed on a regular and systematic basis. Having been employed with the Respondent for more than six years, and that the Applicant was one of the two skippers, there was a reasonable expectation of the Applicant that this pattern of employment would continue indefinitely.9
[136] The consideration of tests whether a casual employee was engaged on a regular and systematic basis was set out by the Full Bench of the Commission in Chandler v Bed Bath N’ Table Pty Ltd[2020] FWCFB 306 (Chandler) recently provided a summary of approach to determining whether a casual could be deemed regular and systematic: (emphasis added)
“[11] It is apparent on the face of the decision that the Deputy President’s determination as to whether Ms Chandler’s casual employment was regular and systematic was attended by a significant error of principle. In her application of s 384(2)(a) to the facts of the case, the Deputy President proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic. We do not consider this to be the correct approach. In Yaraka Holdings Pty Ltd v Giljevic, the Court of Appeal of the ACT gave consideration to the proper construction of s 11 of the Workers Compensation Act 1951 (ACT), which for relevant purposes deemed as workers for the purpose of that Act casual workers if their “engagement, under the contract or similar contracts, has been on a regular and systematic basis” taking into account a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work, and the normal arrangements for someone engaged to perform that type of work. Crispin P and Gray J observed that the concept of employment on a regular and systematic basis was drawn from the Workplace Relations Act 1996, and went on to say (emphasis added):
[65] It should be noted that it is the "engagement" that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent.
…
[67] Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.
[68] The term "regular" should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for "frequent" or "often". However, equally, it is not used in the section as a synonym for words such as "uniform" or "constant". Considered in the light of the criteria in s11 (3)(a)-(g), we are satisfied that the pattern of engagement over the years from 1995 to 2002 satisfied this description.
[69] Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged.
[12] Similarly, Madgwick J said (emphasis added):
[89] … a ‘regular ... basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all.
[90] The respondent’s work for the appellant was certainly frequent enough to be termed ‘regular’ within an acceptable understanding of that term, which may, even in ordinary speech, be used to denote ‘frequent’.
[91] Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd edn, 2001).
[13] The reasoning in Yaraka Holdings has been applied to the concept of casual employment on a regular and systematic basis in the FW Act. In WorkPac Pty Ltd v Skene, the Federal Court Full Court favoured (without needing to finally adopt) the view that the construction in Yaraka Holdings should be applied to the definition of “long term casual employee” in s 12 of the FW Act (which includes a requirement that the employee has been employed “on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months”). The Commission in its own decisions has consistently applied Yaraka Holdings to s 284(2)(a), including in the Full Bench decisions in Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell and Bronze Hospitality Pty Ltd v Janell Hansson as well as in numerous first instance decisions.”
Associated entities
[137] The submissions and evidence of the parties have been taken into account (as summarised in this decision) in relation to the entities. This material has been considered against the legislative tests for associated entities as set out. It is determined that R&J and Dangan are associated entities on the basis of such. Dangan is owned and operated with Mr Caravella as one director, with CFA being a paying tenant of Dangan. Whilst it is recognised that there is different ownership, there is a commonality of directors and interrelationship of enterprise and staff. There is an interrelationship between these companies that meets the statutory tests and is supported also on an operational basis, and in terms of the resources used. Importantly, the companies are connected by shared directors, financial support and staff. It is recognised that the same directors are not directors of all organisations under consideration. However, it is noted that Mr Zenon Caravella features as a common director across the organisations and also has an operational connection. This is also the case with Dangan and Caravella Football Academy (CFA) that this director is shared by the entities.
[138] Having determined that the entities are associated in accordance with the legislative tests, it is also necessary to consider whether there were 15 employees across the entities at the time of the Applicant’s dismissal. The employees, coaches and referees were set out according to the Respondent’s submissions and evidence in paragraphs [47], [48] and [50] of this decision. However, the test is not who was paid that week, but those engaged on a regular and systematic basis. However, even on this restricted list, there is more than 15 employees.
[139] The matters associated with each of these categories has been considered. The Applicant referred to a list of six coaches however in accordance with the evidence of Ms Britton and Mrs Caravella, the two final coaches on the list they indicated were just introduced at the last minute to assist, having been removed from the list, making the number of coaches at the time, four. This is taken together with the three employees from R&J and the two employees as listed previously in the decision for Dangan Pty Ltd.
Regular and systematic employees
[140] What must be determined is whether the employment of the coaches and referees was undertaken on a regular and systematic basis. The case authorities informing the tests for considering whether casual employees were employed a regular and systematic basis have been set out. The Full Bench decision in Bed Bath N Table talks considerably about the tests regarding the regular engagement of casual employees, such as those employees who were referees and coaches in the current scenario.
[141] The evidence on behalf of the employer pointed to the flexibility required in relation to the uncertainty that was symptomatic of the employment of these young people in the referee positions. Their engagement is considered to be on a regular basis consistent with the roster provided as the required commitment for refereeing the teams and games through the season as set out.
[142] The evidence was that there was an organisation to the retention of the teenage referees (with the referee licence) and their rostering to fulfil the football roster and competitions. The reference to them as ‘independent skilled specialists’ or signing a ‘hobby supplier form’ did not detract from their characterisation as casuals employed on a regular and systematic basis. The engagement on a regular basis was consistent with the roster, whereby the guideline for managing the teams and games. The coaches that Ms Britton referred to as not being consistently used have been left off the list.
[143] Ms Britton pointed to those referees and undertook the count on the basis as those who had been paid on the week, consistent with the termination of the Applicant. It is however recognised that there is a greater group of referees that were retained by the roster, who may not have simply refereed that weekend. Mr Murray’s evidence was that this was the case and that the list of the referees was longer than that referred to. I have however taken a cautionary approach to the number on the list and reduced the number of coaches and referees on the list I accordance with the Respondent’s evidence. But this conservative view should be acknowledged, in comparison to the broader number of retained young referees on the roster and list of referees for the season. Young referees simply not being available to work a particular shift having previously advised him the employer or only done so shortly before their required refereeing commitment does not remove them from consideration of the list of employees engaged at the time of the dismissal.
[144] The engagement of the referees is seen to be undertaken on a regular and systematic basis as per the manner in which the employer wrote to the referees and set out their required commitment of games. On the evidence, the engagement of the coaches and referees was regular and systematic.
[145] Given the confirmation of associated entities and the confirmation of the related list of employees reduced in accordance with the employer’ evidence. at the time of dismissal there was 15 or greater employees at the time of the Applicant’s dismissal. This is taking into account those employees who are considered to be regular casual employees employed on a regular and systematic basis. The Respondent does not meet the definition in section 23 of being a small business employer, taking into account the associated entities and having more than 15 employees employed at the point in time. The lists, as set out includes 8 referees, 4 coaches and 5 employees being a total of 17 employees.
[146] As set out in the case authorities, the fact that the engagement of the referees may be on a regular and systematic basis, even if as cited, this is constituted by frequent though unpredictable engagements. The engagements ultimately need not involve predictability of engagements or assurance of work at all. In the current circumstances on the evidence there was predictability of engagements and it was frequent and regular. The inability of a young person to perform a shift does not undermine such. The call for referees by the employer and organisation into a roster implied a systematic basis of engagement and the follow up of them denoted a frequency and regularity of engagement consistent with the casual definition.
[147] Whilst it is understood that Mr Caravella considers that he is a small business employer, he considers that the lean nature of employment structure and his altruistic goal to convey football skills and experience in far north Queensland in the most efficient manner for families is important. It is recognised that Mr Caravella has considerable skill and experience in operating his business and is passionate about providing the service. It must be remembered that in not defining his business as a small business employer, (which he very much regards his business as) is only by virtue of the statutory tests used as the comparators. It is understood that his consideration of the very essence and operation of his business is contrary to the conclusion drawn.
CONCLUSION
[148] Accordingly, in circumstances where the employer is not considered to be a small business in accordance with section 383, the minimum employment period required is six months at the time of the Applicant’s termination of employment. The Applicant’s employment is considered to have met minimum employment period of six months and therefore is entitled to proceed with his application made pursuant to section 394 of the Act.
[149] For these reasons, in accordance with the case authorities as set out, it is determined that the Respondent is not a small business employer, and as a result, it is determined that the Applicant had served the minimum employment period of 6 months. The jurisdictional objection is therefore dismissed.
[150] I Order accordingly.
[151] The parties will be contacted in due course regarding the further programming of the substantive unfair dismissal application.
COMMISSIONER
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1 Keira Fletcher v Little Darlings Early Development Centre [2015] FWC 7556.
2 [2021] FWC 3872.
3 [2021] FWCFB 3707.
4 Fair Work Act 2009 (Cth) ss 23 and 12 (definition of ‘regular casual employee’).
5 [2019] FWC 4362.
6 Hansson v Bronze Hospitality Pty Ltd [2019] FWC 4362 at para [37]; citing Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6.
7 Hansson v Bronze Hospitality Pty Ltd [2019] FWC 4362 at para [38]; citing Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6 at para [65] – [69]; adopted by the Full Bench in Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 1099 at para [24].
8 [2014] FWC 5071.
9 Greene v Hobart Historic Cruise T/A Hobart Historic Cruise [2014] FWC 5071 at para [28] – [31].
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