Peter John Chambers & Jennifer O'Brien v Broadway Homes Pty Ltd
[2022] FWCFB 86
•30 MAY 2022
| [2022] FWCFB 86 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Peter John Chambers & Jennifer O’Brien
v
Broadway Homes Pty Ltd
(C2022/2370)
| VICE PRESIDENT HATCHER | SYDNEY, 30 MAY 2022 |
Appeal against decision [2022] FWC 332 of Commissioner Williams at Perth on 24 March 2022 in matter numbers C2021/3763 and U2021/5772 – appellants’ 29 April 2022 application for an order for production of documents
Mr Peter Chambers and Ms Jennifer O’Brien (appellants) have lodged a notice of appeal against a decision of Commissioner Williams[1] to dismiss their respective applications made under s 365 and s 394 of the Fair Work Act 2009 (FW Act). In their applications, the appellants alleged that they had been “dismissed” by the respondent, Broadway Homes Pty Ltd. The Commissioner determined that, because he was not satisfied that the appellants had been employees of the respondent, they had not been “dismissed” within the meaning of s 386 of the FW Act and therefore the applications were beyond the Commission’s jurisdiction. The appeal has been listed for hearing before us on 10 June 2022.
On 29 April 2022, the appellants lodged a Form F52 application for an order under s 590(2)(c) of the FW Act requiring the respondent to produce the following documents:
1.All account statements for the Delstrat account BSB 016495 Acc 452097106 held by National Australia Bank for the relevant period from September 2019 until June 2021.
2.All communication between Delstrat Group Directors, senior management, other employees, and the Office of State Revenue relating to the audit conducted within the respondent's businesses to determine the payroll tax liability for payments made to the appellants.
3.The Sales Consultancy Agreement and Deed of Guarantee executed in April 2019 between Jamrok Pty Ltd and Affordable Living Homes.
4.All email communication between Verity Phoenix, Sue Savas and Peter Gobetti in relation to the engagement of Peter Chambers and Jennifer O'Brien for the period between September 2019 and April 2020.
In the above categories of documents, “Delstrat” is a reference to the Delstrat group of companies, of which the respondent is one and “Affordable Living Homes” (HALPD Pty Ltd) is another. “Jamrok Pty Ltd” (Jamrok) is a reference to a company which, to put it as neutrally as possible at this stage, contracted to provide services to the respondent and of which Ms O’Brien was the sole Director and Shareholder during the relevant period. Verity Phoenix is the Group Accounts Manager for the Delstrat Group, Sue Savas is an accountant for the Delstrat Group, and Peter Gobetti was previously Sales Manager and later General Manager for the respondent.
In their F52 application, the appellants state that the reasons why the documents in the above categories are sought and how they will assist the Commission in reaching a decision are as follows (using the same numbering):
(1)The bank statements are sought to indicate that payments made to the appellants were treated the same as ordinary staff in that they were paid on a similar regular cycle and from the same account. The bank statements will also clearly indicate the payments made to the Office of State Revenue for the payroll tax liability raised by payments made to the appellants.
The bank account statements will assist the Commission by indicating that the appellants were “paid” on a regular cycle that was in keeping with an employment relationship from the same account that all the respondent’s employees are remunerated from. It will also highlight that the respondent’s legitimate sub-contractors’ invoices are paid through separate accounts. Further the statements will also show complicit payments of payroll tax to the Office of State Revenue that are calculated using the total payments from this account, including payments to the appellants.
(2)The communication between the Office of State Revenue and the respondent's businesses are sought to indicate the extent of the respondent’s knowledge about the determination of the appellants as employees for the purposes of payroll tax liability through the use of judicially accepted indicia.
Communication between the Office of State Revenue and the respondent will assist the Commission by providing details on the level of knowledge the respondent had regarding the classification of the appellants as employees for the purpose of payroll tax liability. The audit would have provided insight to the respondent about the indicia used to determine the outcome. The communication will also indicate to the Commission the extent that Mr Gangemi knew about the payment of payroll tax and whether he purposely misled the Commission in his oral evidence.
(3)The Sales Consultancy Agreement is sought to indicate that the relationship between Jamrok Pty Ltd and Affordable Living Homes is materially different from the relationship formed between the appellants and the respondent during the relevant period of employment at Broadway Homes.
The Sales Consultancy Agreement will assist the Commission by indicating that the previous relationship between Jamrok Pty Ltd and Affordable Living Homes should not have any bearing on the current matters (the respondent is currently relying on past relationships to help determine the current one, without producing the agreement). The Agreement will indicate to the Commission that the relationships formed between Jamrok and Affordable are materially different from the relationship formed between the appellants and Broadway Homes.
(4)The communication between the respondent’s accounts department and Mr Gobetti is sought to determine if the respondent planned to present, or actually presented, Ms O’Brien with a separate agreement for her personal service separate from Mr Chambers.
The communication between the respondent’s accounts department and Mr Gobetti will assist the Commission by indicating the respondent’s intentions around the engagement of Ms O’Brien and if she was to be presented with a separate agreement rather than work as a ‘team’ with Mr Chambers.
The Mr Gangemi referred to above is the Group General Manager of three companies in the Delstrat Group.
The principles which guide the determination of applications for order for the production of documents under s 590(2)(c) have been summarised as follows:
“[23] The power conferred by s.590(2)(c) is a discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The Commission will be guided in the exercise of its discretion by the practice followed by courts in civil proceedings when issuing subpoenas. The documents sought must have apparent relevance to the issues in the proceedings. Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced. The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.”[2] (footnotes omitted)
In this case, the documents are sought for the purpose of adducing new evidence in the appeal. The criteria stated in Akins v National Australia Bank[3] in relation to adducing new evidence on appeal are usually applied by this Commission.[4] They are: (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that there must be a high degree of probability that there would be a different verdict; and (3) the evidence must be credible.
We will deal with each of the above categories in turn.
First category
The primary purpose for the production of the documents sought in this category was said by the appellants to be that it would demonstrate that remuneration paid by the respondent to Jamrok for the provision of services performed by the appellants came from the same account form which the respondent paid its employees, and from a different account from which the respondent paid its “legitimate” subcontractors. We do not accept, having regard to the principles stated by the High Court in CFMMEU v Personnel Contracting Pty Ltd,[5] that the documents sought have any apparent relevance to the issue of whether Mr Chambers and Ms O’Brien were employees of the respondent. In short, evidence about the account from which they were paid has no probative value in relation to the issue to be determined in the appeal.
As to the other matters raised by the appellants in support of the making of an order for production of the documents in this category:
the respondent expressly concedes that it paid payroll tax on the remuneration paid to Jamrok in respect of the services performed by the appellants, so this is not a fact in issue; and
there was already evidence before the Commissioner at first instance concerning the identity of the account from which remuneration to Jamrok was paid and the timing of such payments.
Second category
As earlier stated, the respondent concedes that it paid payroll tax on the remuneration paid to Jamrok in respect of the services performed by the appellants, so the documents sought have no apparent relevance to any fact in issue. What the respondent knew about the basis upon which it may have been assessed as liable by the State Government for the payment of payroll tax is of no relevance to the appeal.
Third category
The documents sought in this category were encompassed by an order for the production of documents made by the Commissioner at first instance. The respondent’s response to the order in respect of these documents was that they could not be located. That issue was not pursued further before the Commissioner. It remains the respondent’s position that the documents cannot be located. There is accordingly no purpose in again requiring the production of these documents.
Fourth category
In the decision under appeal, the Commissioner found (at [390]-[398]) that there was no written agreement entered into between the respondent and Ms O’Brien or which specifically pertained to the services performed by her. The appellants have confirmed that they do not challenge that finding in their appeal. Accordingly, whether the respondent “planned to present, or actually presented” Ms O’Brien with a separate written agreement for her services, or its intentions in that respect, is of no apparent relevance to the issues to be determined in the appeal.
Conclusion
The appellants’ application for an order for production of documents is dismissed.
VICE PRESIDENT
Appearances:
P Chambers for the appellants.
N Parkinson, solicitor, for Broadway Homes Pty Ltd
Hearing details:
2022.
Sydney (via video link):
27 May.
[1] [2022] FWC 332
[2] Kennedy v Qantas Ground Services Pty Ltd[2018] FWCFB 3847
[3] [1994] 34 NSWLR 155 at 160
[4] See e.g. Romic v Blacktown City Council [2020] FWCFB 6098 at [16]
[5] [2022] HCA 1, 398 ALR 404
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