Mr Travis Cording v Schneider Electric (Australia) Pty Limited

[2024] FWC 2714

[2024] FWC 2714

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Travis Cording
v

Schneider Electric (Australia) Pty Limited

(C2024/2524)

COMMISSIONER TRAN MELBOURNE, 2 OCTOBER 2024

Application to deal with contraventions involving dismissal

1. On 17 April 2024 Mr Travis Cording applied under s 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections contravention dispute involving dismissal.

1. The application was made against Schneider Electric (Australia) Pty Limited. Schneider Electric says that it was not Mr Cording’s employer and therefore could not dismiss him within the meaning of the Act. Schneider Electric says that Mr Cording’s employer is Recruitment Select Pty Limited. The application was not also made against Recruitment Select Select.

1. In order for the Commission to deal with a contravention involving dismissal, it must find – as a matter of fact – that the respondent to the application, being Schneider Electric, dismissed Mr Cording.[1]

1. I find that Schneider Electric did not dismiss Mr Cording, because it did not employ him. I therefore dismiss his application. My reasons follow.

Hearing and materials

1. Directions were issued and material, including outlines of argument, witness statements and documentary evidence, were filed by both parties in accordance with those directions. My chambers prepared a hearing book from the material filed and provided it to both parties prior to the hearing.

1. I held a hearing via Teams on Monday 24 June 2024. Mr Cording gave evidence on his own behalf. Sophie Anderson, Business Development Officer employed by Recruitment Select, and Angelica Rodriguez, HR Business Partner employed by Schneider Electric, gave evidence on behalf of Schneider Electric.

Common law determines whether Mr Cording was an employee of Schneider Electric

1. Section 335 of the Act provides that employee and employer have their ordinary meaning. In determining whether a person is an employee of another person, two decisions of the High Court of Australia are relevant:  CFMMEU v Personnel Contracting Pty Ltd[2] and ZG Operations v Jamsek.[3] The principles from both cases were distilled and summarised by Commissioner Hampton (as he then was) in Nawaz v Rasier Pacific Pty Ltd T/A Uber BV.[4] I do not repeat them here.

1. I note that the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 inserted s 15AA to the Act, which provides the ordinary meaning of employee and employer is to be determined by ascertaining the real substance, practical reality and true nature of the relationship. This was inserted as a response to the High Court decisions in Personnel Contracting and Jamsek. However, this provision does not apply to this matter as it did not commence until 26 August 2024.

1. I determine the question of whether Schneider Electric employed Mr Cording by having regard only to the parties’ legal rights and obligations, rather than the history of the relationship and the manner of its performance,[5] in accordance with the common law predating the insertion of s 15AA.

Mr Cording argued that the employer was Schneider Electric

1. There was no written contract between Mr Cording and Schneider Electric that “comprehensively committed the terms of their relationship.”[6] On this basis, Mr Cording argued that an employment relationship could be inferred from the totality of the relationship between him and Schneider Electric. However, this argument fails to adequately address 3 matters. First, that there was no contractual relationship at all between Mr Cording and Schneider Electric. Second, when considering the totality of the relationship in this matter, it is necessary to include another party – Recruitment Select. Last, that there are contractual and other documents between Mr Cording and Recruitment Select that point to an employment relationship, where Recruitment Select is the employer.

There is no contractual relationship between Mr Cording and Schnieder Electric

1. There is no evidence that there was any contractual relationship between Mr Cording and Schneider Electric. While Mr Cording gave clear evidence that he intended and wanted to be employed by Schneider Electric at the time that he commenced working there, there is no similar intent on the part of Schneider Electric. Further, any intent to create legal relations is to be objectively assessed, and not inferred from what may have been the subjective belief of one or both parties.[7]

1. There was no factual dispute about how the relationship among the parties came about. Mr Cording replied to an advertisement that had been posted on seek.com. The advertisement sought ‘Electricians/Electrical Trade Assistants’ and was posted by Recruitment Select. The advertisement did not include reference to Schneider Electric. It did refer to ‘a large, well known manufacturing client based in Benalla,’ which Mr Cording correctly inferred was Schneider Electric.

1. Mr Cording argued that he had an intention to create legal relations with Schneider Electric. Mr Cording said that he wanted to be employed by Schneider Electric. He had experience of Recruitment Select as an agent through whom he had previously obtained employment. He had an expectation that, based on his prior experience with Recruitment Select, they would place him into a job with Schneider Electric where Schneider Electric would have been his employer. He says that his intention was so clear that he would not have proceeded with the interview if he had known that Schneider Electric was not going to be his employer.

1. Mr Cording attended an interview with Ms Sophie Anderson, a representative of Recruitment Select. Mr Cording also attended an induction at Schneider Electric on 15 June 2023.

1. On 19 June 2023, Ms Anderson informed Mr Cording by text message that Schneider had offered him a position. She also said that she was working out pay rates and hours and would get back to him. Ms Anderson later messaged Mr Cording his start date.

1. There is nothing in evidence about any communications between any direct employee of Schneider Electric and Mr Cording about the commencement of employment. There are also no employment related documents between Mr Cording and Schneider Electric. I find that there is no contractual relationship between Mr Cording and Schneider Electric.

1. There is also insufficient evidence to imply a contractual relationship. Mr Cording gave evidence that he was directed in his day-to-day work by Schneider employees and had minimal contact from Ms Anderson or any other employee of Recruitment Select. He also referred to occasions when he was late and Schneider Electric required him to make up the time, and Recruitment Select was not involved in those matters. I deal further with matters about direction and control below.

Totality of relationship between the parties demonstrates a labour-hire arrangement

1. Ms Rodriguez, HR Business Partner employed by Schneider Electric, gave evidence that there are contractual arrangements between Schneider Electric and Recruitment Select where Recruitment Select has a pool of suitably qualified staff who are provided to Schneider Electric when Schneider makes a request. Ms Rodriguez gave evidence that she had no day-to-day interactions with Mr Cording nor what work he performed, other than being aware that Recruitment Select had assigned him to work for Schneider Electric.

1. Ms Anderson, Business Development Officer employed by Recruitment Select, gave evidence that Recruitment Select is in the business of labour hire and recruitment services. She said that Recruitment Select has a commercial agreement to supply suitably qualified and trained employees of Recruitment Select to Schneider Electric when requested. She gave evidence that Recruitment Select recruits and employs suitably qualified persons to place with clients, including Schneider Electric.

1. Neither Ms Rodriguez nor Ms Anderson provided contractual documents reflecting the arrangements they described. Mr Cording says that the arrangements between Recruitment Select and Schneider Electric were administrative, and Recruitment Select was simply a middle party or agent making weekly payments to him.

1. The evidence of all is consistent with a labour hire arrangement, where one party is the employer of an individual that ‘supplies’ the individual to a host. The host generally directs the day-to-day work of the individual and may as a matter of practical reality exercise a significant degree of control over the performance of work. Such control does not necessarily result in an employment relationship.[8] Without more, Mr Cording’s evidence that he was directed in his day-to-day work by Schneider Electric, including the requirement that he make up time when late, does not point to an employment relationship between him and Schneider Electric.

Taxation and Personnel documents and Payslips

1. Ms Anderson provided persuasive documentation that demonstrated that Recruitment Select employed Mr Cording. These included taxation, superannuation, employee induction documents and payslips, as well as a ‘Worker Assignment Agreement’.

1. Mr Cording signed a tax file number declaration as a payee, dated 29 June 2023. The payer named on that form is Recruitment Select.

1. Mr Cording completed a personnel details form that had Recruitment Select logo on it, did not refer to Schneider Electric and acknowledged in cross examination that the ‘we’ on that form referred to Recruitment Select. He acknowledged that the form meant that Recruitment Select was the entity which was going to pay him.

1. Mr Cording also completed a Health History Questionnaire. Again, it had a Recruitment Select logo on it and did not refer to Schneider Electric. He says he completed that document at Schneider Electric. The document is signed by him as a ‘prospective employee’ and counter-signed by Ms Anderson as ‘Recruitment Select Employee.’ He accepted during cross-examination that words on the form could only have referred to employment with Recruitment Select, and conceded that he had signed the form.

1. Mr Cording also completed a document headed ‘Employee Induction Assessment Sheet.’ On that form, there were additions made, which Mr Cording says Ms Anderson instructed him to do. The additions were in answer to questions about to whom he would report unsafe or dangerous work practices and what to do if he injured himself. His initial answer was ‘supervisor’; Ms Anderson required him to insert ‘Recruitment Select’.

1. Mr Cording also completed a Superannuation Standard Choice Form, signed it, and returned it to Recruitment Select. That form refers to Recruitment Select as the employer. The form did not refer to Schneider Electric.

1. Mr Cording’s weekly payslips had Recruitment Select’s logo and business details and include reference to Schneider Electric under the column headed ‘Client Name’. Mr Cording acknowledged that he was paid each week by Recruitment Select. At the bottom of every payslip are the words:

   “You have been employed by Recruitment Select As an irregular casual employee and your payment is inclusive of the 25% casual loading.”

1. Mr Cording acknowledged that he read and understood those words, although not every time he received his payslip. He also conceded that he never attempted to correct Recruitment Select about his view that his employer was Schneider Electric rather than Recruitment Select.

1. Mr Cording argued that the above types of documents are not definitive when determining whether there is an employment relationship. While not necessarily determinative, documents that describe or evidence an apparent employment relationship are relevant.[9] Mr Cording argued that the documents reflected administrative arrangements. There is no evidence that the documents are a sham or a façade, and they otherwise record Recruitment Select as Mr Cording’s employer. Under cross-examination, Mr Cording agreed that the documents record Recruitment Select his employer.

1. The above documents are consistent with the evidence of Ms Anderson and Ms Rodriguez about the contractual arrangement between Schneider Electric and Recruitment Select, in which Mr Cording was employed by Recruitment Select, who supplied his labour to Schneider Electric.

Worker Assignment Agreement

1. Last, Mr Cording signed a document called a ‘Worker Assignment Agreement,’ which only had two parties: Mr Cording and Recruitment Select. The agreement did refer to Schneider Electric as the host employer in a Schedule to the Agreement, but Schneider Electric is not a party to the document.

1. Mr Cording says this is not an employment contract, and the reference to Recruitment Select as the employer in the document does no more than label the relationship, when the determination of the relationship is a matter for the Commission. Mr Cording further argues that instead the document reveals that Schneider Electric is the host and actual employer, when considering other matters such as control.

1. Schneider Electric argues that the document has all the hallmarks of an employment contract: it has a description of the work to be performed, start dates and hourly rates, and it provides that Recruitment Select may terminate the worker’s employment with or without notice for listed reasons. As referred to above, the document also includes a term requiring Mr Cording to comply with the host employer’s lawful and reasonable directions, but requires Mr Cording to contact Recruitment Select if he is unsure.

1. I am of the view that the Worker Assignment Agreement is consistent with an employment relationship between Recruitment Select and Mr Cording, and consistent with labour hire arrangements generally. So, I find that there is no employment relationship between Mr Cording and Schneider Electric.

Conclusion

1. In considering the legal rights and obligations between Mr Cording and Schneider Electric, I conclude that there was no contractual relationship between them. The totality of the relationship in this matter includes another party – Recruitment Select – and that totality, including pay slips, taxation and other documents, demonstrates a standard labour hire arrangement, in which Mr Cording was an employee of Recruitment Select and Schneider Electric was the host employer where Mr Cording performed work. I therefore find that Schneider Electric was not Mr Cording’s employer and therefore could not dismiss him within the meaning of s 386 of the Act.

Order

1. For the above reasons, I order that the application for the Commission to deal with a general protections dispute involving dismissal under matter number C2024/2524 filed by Mr Travis Cording on 17 April 2024 is dismissed.

COMMISSIONER

Appearances:

M McKenney (Counsel) with C Pollard of Wisewould Mahony with permission on behalf of the Applicant.
P Brown of Baker Mackenzie with permission on behalf of the Respondent.

Hearing details:

2024.
Melbourne (Video via MS Teams).
24 June.

Final written submissions:

Respondent:    3 July 2024
Applicant:      3 July 2024

[1] see Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68].

[2] (2022) 275 CLR 165.

[3] (2022) 275 CLR 254.

[4] [2022] FWC 1189, at [51].

[5] see also Meltser v Toppa Sports Pty Ltd[2024] FWCFB 229 at [19]-[20].

[6] per CFMMEU v Personnel Contracting (2022) 275 CLR 254 at [59].

[7] Ermogenous v Greek Orthodox Community (2002) 209 CLR 95, [25]; Nield v Mathieson [2014] FCAFC 74, [42].

[8] see FP Group Pty Ltd v Tooheys[2013] FWCFB 9605 at [29]; Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 196 CLR 174 at [47] and [60]-[61]; Personnel Contracting above note 2 at [78].

[9] see Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191 at [162] and references therein.

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