Robert Barnes v Anytime Pacific Pty Ltd T/A Anytime Fitness Burwood

[2015] FWC 3259

[2015] FWC 3259

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Barnes
v
Anytime Pacific Pty Ltd T/A Anytime Fitness Burwood
(U2015/2354)

DEPUTY PRESIDENT BOOTH SYDNEY, 13 MAY 2015

Application for relief from unfair dismissal - jurisdictional objection - minimum employment period - Small Business Employer

[1] Mr Robert Barnes made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 on 14 January 2015. He had been employed as an area manager of fitness clubs in Burwood and North Strathfield, NSW (known as Anytime Fitness Burwood and Anytime Fitness North Strathfield) since 4 June 2014. Anytime Pacific Pty Ltd, the owner of Anytime Fitness Burwood, terminated his employment by way of a letter dated 19 December 2014 that was handed to him on the same day.

[2] Anytime Pacific objects to his application on the grounds that it was lodged out of time, and that Mr Barnes has not served the minimum employment period for a small business of one year.

[3] Mr Barnes agrees that his application was lodged out of time. The Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, unless an extension of time is granted by the Commission. 1

[4] The matter was listed before me in the Unfair Dismissal Jurisdictional Roster on 24 April 2015 to hear Mr Barnes’s application for an extension of time and Anytime Pacific’s jurisdictional objection in relation to the minimum employment period. Mr Barnes represented himself and Anytime Pacific was represented by Mr James Tompson, owner of Anytime Pacific. Ms Ayoub, Mr Tompson’s accounts person, was also present and made helpful submissions. Mr Barnes and Mr Tompson availed themselves of the opportunity of consulting with two pro bono solicitors provided by the Commission, Ms Lenard and Mr Tao. The matter was conducted as a determinative conference.

[5] I gave an oral decision dismissing Mr Barnes application. I found that Anytime Pacific was a Small Business Employer and Mr Barnes’ employment of some 6 and-a-half months was less than the minimum employment period of one year required for him to be protected from unfair dismissal. 2

[6] I decided that I did not have to determine his extension of time application because even if it was granted his period of employment would inhibit his application proceeding.

[7] I advised Mr Barnes and Mr Tompson that I would give reasons for my decision in writing and these are those reasons.

Has Mr Barnes served the minimum employment period?

[8] Mr Barnes and Mr Tompson agreed that Mr Barnes’ period of employment was just under 6 and-a-half months.

[9] Mr Tompson owns both Anytime Pacific Pty Ltd and Anytime Eastern Pty Ltd which run Anytime Fitness Burwood and Anytime Fitness North Strathfield respectively. Mr Tompson conceded that they were associated entities for the purpose of the definition of Small Business Employer found in s.23 of the Act. The Act provides that a Small Business Employer is an employer with fewer than 15 employees.

[10] Section 383 of the Act provides that the minimum employment period for a Small Business Employer is one year. In counting the number of employees and the duration of employment of the employee both sections 22 and 383 make it clear that the calculation is made as at the date of dismissal of the employee.

How many employees does Anytime Pacific and Anytime Eastern employ?

[11] Mr Tompson contended that between the two associated entities they employed 7 people, inclusive of Mr Barnes and Mr Tompson, making his businesses a Small Business Employer.

[12] Mr Barnes however believed that the two clubs employed 17 people.

[13] Mr Barnes and Mr Tompson agreed that 7 individuals were employees at the time of Mr Barnes’ dismissal. Their names appeared on the payroll record provided by Ms Ayoub and their names were Andrea, Madi, Jermyn, Rebecca and Rollan along with Mr Barnes and Mr Tompson.

[14] Mr Barnes contended that two other groups of individuals should be considered to be employees. They were the Group Fitness Instructors Julie, Danielle, Andrew and Maria and the Personal Trainers Joe, Renee, Vinnie, Po, Greg and Klaus, a total of 10 people.

[15] The club cleaner or cleaners and Ms Ayoub are clearly independent contractors; each is engaged under a contact for services and Mr Barnes did not contest this.

[16] Mr Tompson contended that the people in both contested groups were independent contractors not employees. Independent contractors are not counted towards the total for the purpose of establishing whether an employer is a Small Business Employer. Both groups would need to be considered to be employees for Mr Barnes to succeed.

Are the Group Fitness Instructors employees?

[17] Instructors are licensed to instruct using an exercise regimen owned by an organisation called Garnama Pty Ltd trading as Les Mills Asia Pacific. Anytime Fitness Burwood has a licence agreement with Les Mills to use the instructors licensed by this organisation.

[18] The instructors are directly engaged by Anytime Fitness Burwood and they invoice Anytime Fitness Burwood for the classes they conduct. A sample of an invoice for each instructor was tendered and it is apparent that each uses their own letterhead, some with a trading name and some without. Three had Australian Business Numbers and one did not. They are paid $50 per class upon presentation of the invoice, rather than a weekly wage from which tax is deducted, for classes such as Body Pump and Body Balance. If no one comes to a class they are only paid $25 for attending on that occasion. They attend the club only for the conduct of the class. They are free to have another trainer “cover their class” 3 if they are not available. There was no evidence about whether they worked for other clubs however they each only conduct around two classes a week so it is improbable that they consider their classes at the club as their only employment. There was no suggestion that they took direction from the club as to how to conduct a class and the submission that the Les Mills regimen was paid for by the club for the purpose of the instructors using an accepted exercise regimen was not contested.

[19] Guided by the principles set out in previous decisions of the Commission 4 these features taken together persuade me that they are independent contractors rather than employees and should not be counted for the purpose of deciding whether Anytime Pacific is a Small Business Employer.

Are the Personal Trainers employees?

[20] Personal Trainers pay the club what is described as rent of $250 per week for the ability to train their clients on the site of the club. Their clients pay them directly. When a trainer delivers a set of complimentary sessions for a new client as part of a club promotion they receive a discount on the rent. Anytime Pacific and Anytime Eastern invoice the trainers weekly and charge them GST on their rent. There was no evidence that they took direction from the club as to how to conduct a personal training session. They provide their own equipment and use the club premises at any time of the day or night as they chose. That clients pay them directly and they receive no payment from the club was not contested.

[21] These features taken together persuade me that they are independent contractors not employees and should not be counted for the purpose of deciding whether Anytime Pacific is a Small Business Employer.

Is Anytime Pacific a Small Business employer?

[22] If I am wrong about the Group Fitness Instructors not being employees then taking them into account does not bring the number of employees to 15. The Personal Trainers would also have to be considered to be employees to bring the number of employees to 15 or more. The trainers who pay the club rather than the other way around are even less likely than the instructors to be employees and I find that Anytime Pacific is a Small Business Employer.

Is Mr Barnes a person protected from unfair dismissal?

[23] Mr Barnes was employed for just under 6 and-a-half months and as such he has not served the minimum employment period for a Small Business Employer of one year. Mr Barnes is not a person protected from unfair dismissal 5 and his application is dismissed. An order will issue together with this decision.

DEPUTY PRESIDENT

Appearances:

The Applicant, Mr R Barnes, appeared for himself

Mr J Tompson appeared for the Respondent

Hearing details:

Sydney

2015

24 April

 1 s.394(2)

 2 ss.382 and 383 Fair Work Act 2009

 3   Transcript PN538

 4   Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215; Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario[2011] FWAFB 830; James Voros v Alan Dick[2013] FWCFB 9339

 5 s.383 Fair Work Act 2009)

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