Programmed Integrated Workforce Pty Ltd v Fox

Case [2022] ICQ 32

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Programmed Integrated Workforce Pty Ltd v Fox [2022] ICQ 32

PARTIES:

PROGRAMMED INTEGRATED WORKFORCE PTY LTD

(appellant)

v
CRAIG FOX

(respondent)

FILE NO/S:

C/2022/15

PROCEEDING:

Appeal

DELIVERED ON:

28 November 2022

HEARING DATE:

19 October 2022

MEMBER:

Davis J, President

ORDER/S:

1.   The appeal is dismissed.

2.    The respondent file and serve any written submissions on costs by 4.00 pm on 5 December 2022.

3.    The appellant file and serve any written submissions on costs by 4.00 pm on 12 December 2022.

4.    Each party have liberty to apply, by application filed and served by 4.00 pm on 19 December 2022, for leave to make oral submissions on costs.

5.    In the event that no application is filed by 4.00 pm on 19 December 2022, the question of costs will be decided on the written submissions without further oral hearing.

CATCHWORDS:

INDUSTRIAL LAW - QUEENSLAND - GENERAL EMPLOYMENT CONDITIONS - LONG SERVICE LEAVE - CONTINUITY OF SERVICE AND EMPLOYMENT - where a written employment agreement was entered into between the appellant and an employee - where the employee worked as a casual - where the agreement provided that the employee was employed for each period of casual work - where the employee worked under that arrangement for over seven years - where the Industrial Relations Act 2016 provides that where an employee’s employment is terminated other than for conduct, capacity or performance, an entitlement to long service leave crystallises - where the appellant informed the employee that there would be no further offers of work upon expiry of the employee’s current work period - whether the employee’s service with the appellant was terminated - whether the entitlement to long service leave of the employee crystallised

INDUSTRIAL LAW - QUEENSLAND - GENERAL EMPLOYMENT CONDITIONS - LONG SERVICE LEAVE - CONTINUITY OF SERVICE AND EMPLOYMENT - where the appellant had a contract with the Brisbane City Council to provide it labour - where the contract did not oblige the Council to seek labour from the appellant - where the contract only provided the terms of provision of labour by the appellant if the Council chose to request labour from the appellant - where the Council sought new tenders for the provision of labour - where a competitor of the appellant won the tender - where an employee was employed on a casual basis by the appellant - where the competitor employed the employee - where the competitor provided labour to the Council in the same manner as the appellant had previously done - where the Industrial Relations Act 2016 provided that the long service leave obligations to the employee shifted to the competitor if there had been a transfer of calling - whether there had been a transfer of calling from the appellant to the competitor

Fair Work Act 2009 (Cth), s 394
Industrial Conciliation and Arbitration Acts 1932 to 1952, s 10B
Industrial Relations Act 1990
Industrial Relations Act 1999, s 69
Industrial Relations Act 2016,…

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AGLC
Programmed Integrated Workforce Pty Ltd v Fox [2022] ICQ 32
Case
[2022] ICQ 32
Decision Date

CaseChat Overview and Summary

Programmed Integrated Workforce Pty Ltd (PIW) appealed against a decision of the Queensland Industrial Relations Commission (QIRC) that found it liable for long service leave entitlements of an employee, Mr Haining. The case concerned the interpretation of a labour hire agreement between PIW and the Brisbane City Council (BCC) and the application of the Industrial Relations Act 2016 (IR Act). The primary issue before the Court was whether Mr Haining's employment was terminated by PIW, which would entitle him to long service leave, or whether his employment continued with a new employer, Randstad, after BCC procured labour from them instead. The secondary issue was whether Mr Haining was a transferred employee under s 132 of the IR Act, which would shift the long service leave liability to Randstad.

The Court considered whether Mr Haining's employment was terminated by PIW's decision not to offer further work. The Court held that while the last contract of employment expired, this did not equate to the termination of Mr Haining's service for the purposes of the IR Act. The Court found that Mr Haining's employment was not terminated by PIW, as the decision not to offer further work did not constitute a dismissal under the IR Act. Regarding the transfer of calling, the Court found that there was no transfer of calling from PIW to Randstad because Randstad did not succeed to any asset or goodwill of PIW. Consequently, Mr Haining was not a transferred employee, and the liability for his long service leave remained with PIW.

The Court's decision hinged on the interpretation of the labour hire agreement and the relevant sections of the IR Act. By finding that Mr Haining's employment was not terminated by PIW and that there was no transfer of calling to Randstad, the Court upheld PIW's liability for Mr Haining's long service leave entitlements.

Orders

Orders of the court

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Background

Background to the litigation

PIW appeals against that judgment.Background The proceeding before the QIRC proceeded on the basis of an agreed statement of facts. There is no dispute, either before the QIRC or on appeal to this Court, as to any material fact. The grounds of appeal are all based upon alleged errors of construction by the QIRC as to the effect of documents and legislation. All grounds of appeal allege errors of law. The appeal to this Court is therefore as of right.[3][3]Industrial Relations Act 2016, s 557(1). PIW is a labour hire company. From 20 June 2011, it was party to a labour hire agreement with the Brisbane City Council (BCC) whereby it provided labour to the BCC (“PIW’s contract with BCC” or “the contract”). PIW’s contract with BCC is quite a complicated document which governs the terms upon which PIW was to provide services to the BCC. The contract established a regime where the BCC placed an order for services which PIW then provided. Although the contract is dated 20 June 2011, the commencement date for the contractual arrangements was 10 June 2011. The term of the contract was from 10 June 2011 to 31 May 2013,[4] but there are provisions allowing for extensions and variations. Although the “maximum term” is “five years from and including the commencement date”, it is common ground that the contract was extended into 2019. [4]Clause 2 and Schedule A, Item 1. Recital A to PIW’s contract with the BCC is in terms, “The Council requires the provision of the Services[5] through a panel arrangement”. The significance of that recital is shown by clause 3.7, which explains the concept of a “Panel Arrangement”. That clause is in these terms:[5]“Services” is a defined term, clause 1.1.“3.7 Panel Arrangement - Council not bound to order from the Contractor[6][6]Integrated Group Limited is defined as “the Contractor” (which must, given the agreed Statement of Facts, be a previous name of Programmed Integrated Workforce Pty Ltd).(a)This Contract is part of a panel arrangement established by the Council whereby a number of panel participants (such as the Contractor) have signed contracts similar to this Contract to provide the Council with such Services as the Council may from time to time require and obtain through the placement of an order with a panel participant (including the Contractor).(b)It is a condition of this Contract (and each Order) that the Council:(i) is not providing any guarantee, promise or undertaking (whether legal or equitable) that it will acquire any Services from the Contractor during the Term of this Contract; and(ii) may at any time place an order for the provision of Services from:A.another panel participant; orB.from any third party;where either the Council is of the opinion that none of the panel participants can provide the Services in question as and when required by the Council or where, an Order has been placed with a panel participant and the Council is exercising its rights pursuant to clause 14.6 (or any other provision) of this Contract or that Order.(iii) may add additional Panel Participants to the Panel Arrangement pursuant to clause 3.8.” (emphasis added)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, if Mr Haining is a transferred employee for the purposes of s 132 of the IR Act, then his period of “continuous service” continued from 5 August 2019 and the liability for long service leave falls upon Randstad.The decision in the Queensland Industrial Relations Commission The QIRC determined that:1.Mr Haining was a casual employee;[10]2.his employment was “terminated” by PIW pursuant to clause 10 of the employment agreement;[11]3.Mr Haining was therefore “dismissed” for the purposes of s 95(4)(c)(i);[12]4.the liability to pay proportionate long service leave fell on PIW.[10]Craig Geoffrey Fox v Programmed Integrated Workforce Ltd (No 2) [2022] QIRC 281 at [42], citing WorkPac Pty Ltd v Rossato (2021) 271 CLR 456 at [32]-[33], [105]-[106] and [118].[11]At [65]-[66].[12]At [80]. The QIRC further found that:1.the “calling” referred to in s 132 was the calling of the employer;[13]2.if Randstad had taken a “transfer” of PIW’s calling, then it had done so by way of succession to the calling;[14]3.Randstad did not use any asset of PIW;[15]4.Randstad did not have the benefit of any goodwill of PIW;[16] therefore5.Randstad did not succeed to the calling of PIW; so6.there was no transfer of a calling to Randstad; and7.Mr Haining was not a “transferred employee”;[17] and8.the liability to pay proportionate long service leave fell on PIW.[13]At [123].[14]At [129] and following. Definition of “transfer” in Schedule 5 of the Industrial Relations Act 2016.[15]At [132].[16]At [132].[17]At [137] and following.The appeal Six grounds of appeal were raised. However, all grounds of appeal raised one of two questions, being:1.Did PIW dismiss Mr Haining by the 5 July email?2.Was Mr Haining a transferred employee from 5 August 2019? If the first question is answered in the negative, or the second question is answered in the positive, the appeal must be allowed.Did PIW dismiss Mr Haining by the 5 July email? PIW’s argument, both before the QIRC and on appeal, was that Mr Haining was employed on a series of rolling contracts of employment each of which came into existence upon Mr Haining’s labour being assigned to the BCC and each of which ended upon the expiry of the assignment. That much can be accepted. The employment agreement operates so that, upon acceptance of an assignment, a distinct contract of employment comes into existence for the period of the assignment. Therefore, PIW is correct when it submits that the last contract of employment, which was constituted by Mr Haining’s acceptance of his last assignment, expired. It was not terminated. The issue under s 95(4) is the termination of “service”, not termination of a contract of employment. For a casual employee, “service”, at least as far as the IR Act is concerned, is a different concept to a contract of employment. By s 103(2), an employee’s service is “continuous service” even though “the employee is employed by the employer under 2 or more employment contracts”.

Ratio Decidendi

Legal Principle Established

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