Ruairidh Colm Paterson-Russell

[2020] FWC 4590

[2020] FWC 4590

The attached document replaces the document previously issued with the above code on 31 August 2020.

Insertion of section 52 of the Fair Work Act 2009 at paragraph 14 which was omitted in error.

Callum Young

Associate to Deputy President Asbury

Dated 31 August 2020.

[2020] FWC 4590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Ruairidh Colm Paterson-Russell
(AG2019/4176)

DEPUTY PRESIDENT ASBURY BRISBANE, 31 AUGUST 2020

Application for termination of the Willing Workers Enterprise Agreement 2012 – Objection to application – Whether Applicant has standing to apply for termination of agreement – Whether Applicant was an employee covered by the agreement when the application to terminate it was made – Finding that Applicant was an employee within the meaning in s. 13 when the application was made – Objection dismissed.

BACKGROUND

[1] Mr Ruairidh Colm Paterson-Russell (Mr Paterson-Russell/the Applicant) applies to the Fair Work Commission (the Commission) to terminate the Willing Workers Enterprise Agreement 2012 (the Agreement). The Respondent is The Trustee of the Willing Workers Trust T/A Willing Workers (Willing Workers/ the Respondent). The application is made pursuant to s.225 of the Fair Work Act 2009 (the Act), and is an application to terminate an enterprise agreements after its nominal expiry date (the termination application).

[2] The Respondent combines with another entity Dingo Blue to provide farm work and accommodation for people seeking work in the horticultural industry in Bundaberg. The Applicant entered into a part-time employment agreement with Willing Workers on 14 October 2019. The Applicant asserts that his employment ceased on 3 November 2019. The termination application was made at 10.59 am on 1 November 2019.

[3] The Respondent objects to the termination application asserting that the Applicant’s employment ended before the termination application was made, and that as the Applicant was not an employee at the time of making the termination application, it is not made in accordance with s.225(b) of the Act (the objection). The Respondent also filed an application under s. 587(1) of the Act seeking that the termination application be dismissed (the dismissal application). This decision concerns the objection and the dismissal application.

[4] Directions were issued requiring the parties to file material in relation to the objection and the dismissal application, addressing whether Mr Paterson-Russell was an employee at the time he lodged the termination application. Mr Paterson-Russell represented himself in the proceedings. Permission was granted pursuant to s. 596 of the Act for Willing Workers to be represented by a lawyer on the basis that I was satisfied that this would allow the matter to be dealt with more efficiently, having regard to its complexity. The Respondent was represented by Mr AC Harding of counsel, instructed by Gifford Legal.

[5] In support of the objection and dismissal application, Willing Workers filed witness statements from:

•  Mr Phillip Findlay, Operations Manager, Willing Workers; 1

•  Ms Mercedes Vidal, formerly the night-manager at Dingo One Hostel; 2

•  Ms Wanda Jones, Manager, Dingo One Hostel; 3

•  Mr Steven Greenwood, founding member of the Bundaberg Hostels Association; 4 and

•  Mr David Purcell, sole Director of Willing Workers and owner of Dingo Blue Backpackers. 5

[6] Those persons were present at the hearing and were cross-examined. Mr Paterson-Russell filed a witness statement on his own behalf in opposition to the jurisdictional objection and dismissal application and was cross-examined.  6

ISSUES IN DISPUTE

[7] Willing Workers submits that at the time the termination application was made, Mr Paterson-Russell was neither employed, nor usually employed, by the Respondent and that he does not have standing to make an application under s. 225 of the Act to terminate the Agreement. The grounds upon which the Respondent objects to the termination application are set out as follows in its dismissal application:

“Section 225(b) of the Act provides that an employee covered by the Agreement may make an application for its termination after its nominal expiry date.

At the time of making the application….Mr Paterson-Russell, was not an employee of the Applicant.

Consequently, Mr Paterson-Russell’s application does not comply with s.225(b) of the Act, and the application to terminate is incompetent.

Therefore, [the Commission] has no jurisdiction to continue with the application to terminate.

Section 587(1) of the Act provides that [the Commission] may dismissal an application if: “(a) the application is not made in accordance with this Act.”

Consequently, Mr Paterson-Russell’s application should be dismissed.”

[8] The crux of the Respondent’s position is that at the time the termination application was made, Mr Paterson-Russell was not an “employee covered by the agreement”. It is not in dispute that if the Commission finds that Mr Paterson-Russell was an employee of Willing Workers at the time he made the termination application, he was “covered by the agreement”. What is in dispute is whether Mr Paterson-Russell was an employee, within the meaning of that term in s.225 of the Act, at the time the termination application was made.

[9] The Respondent concedes that the definition of employee in s.225 is broader than the usual meaning of “employee” because it extends to a person “usually employed”. Applying the Court’s reasoning in Australasian Meat Industry Employees’ Union v Belandra Pty Ltd 7 it is submitted that “employee” in s.225 of the Act does not extend to former employees who have evidenced an intention to no longer continue the employment relationship.

[10] The Respondent emphasises that an “employee covered by the agreement” refers to an existing employment relationship as opposed to an employment contract. The Respondent submits that the employment relationship between itself and Mr Paterson-Russell ended before the termination application was made, when the Applicant “walked out” of the employment relationship or the relationship otherwise ended.

[11] The Applicant maintains that he was employed by the Respondent at the time he made the termination application and that in the alternative, the term “covered” in s. 225 of the Act can apply in context of past tense, to an employee who was covered by an enterprise agreement.

LEGISLATION

[12] Section 225 of the Act is in the following terms:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[13] Section 225 is found Part-2-4 of the Act. In that part, by virtue of s. 170 of the Act, “employee” means a “national system employee” and employer means a “national system employer.” A “national system employee” is defined in s. 13 of the Act as: “an individual so far as he or she is employed, or usually employed as described in the definition of national system employer ”.    The term national system employer is defined in s. 14 of the Act as follows:

“14 Meaning of national system employer

(1) A national system employer is:

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.”

[14] Section 52 deals with when an enterprise agreement “applies” to an employer, employee or employee organisation and is in the following terms:

“52  When an enterprise agreement applies to an employer, employee or employee organisation

When an enterprise agreement applies to an employee, employer or organisation

(1)  An enterprise agreement applies to an employee, employer or employee organisation if:

(a)  the agreement is in operation; and

(b)  the agreement covers the employee, employer or organisation; and

(c)  no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.

Enterprise agreements apply to employees in relation to particular employment

(2)  A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.”

[15] Section 53 deals with when an enterprise agreement “covers” an employer, an employee and an employee organisation, and is in the following terms:

“53 When an enterprise agreement covers an employer, employee or employee organisation

Employees and employers

(1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.

Employee organisations

(2) An enterprise agreement covers an employee organisation:

(a) for an enterprise agreement that is not a greenfields agreement—if the FWC has noted in its decision to approve the agreement that the agreement covers the organisation (see subsection 201(2)); or

(b) for a greenfields agreement—if the agreement is made by the organisation.

Effect of provisions of this Act, FWC orders and court orders on coverage

(3) An enterprise agreement also covers an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement covers the employee, employer or organisation:

(a) a provision of this Act or of the Registered Organisations Act;

(b) an FWC order made under a provision of this Act;

(c) an order of a court.

(4) Despite subsections (1), (2) and (3), an enterprise agreement does not cover an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement does not cover the employee, employer or organisation:

(a) another provision of this Act;

(b) an FWC order made under another provision of this Act;

(c) an order of a court.

Enterprise agreements that have ceased to operate

(5) Despite subsections (1), (2) and (3), an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation.

Enterprise agreements cover employees in relation to particular employment

(6) A reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment.”

[16] Section 54 deals with when an enterprise agreement is in operation and provides:

“54  When an enterprise agreement is in operation

(1)  An enterprise agreement approved by the FWC operatesfrom:

(a)  7 days after the agreement is approved; or

(b)  if a later day is specified in the agreement—that later day.

(2)  An enterprise agreement ceases to operate on the earlier of the following days:

(a)  the day on which a termination of the agreement comes into operation under section 224 or 227;

(b)  the day on which section 58 first has the effect that there is no employee to whom the agreement applies.

Note:          Section 58 deals with when an enterprise agreement ceases to apply to an employee.

(3)  An enterprise agreement that has ceased to operate can never operate again.”

[17] The question of whether a person is usually an employer, was considered by North J in Australian Meat Industry Employees Union v Belandra Pty Ltd where his Honour said:

“Whether a person is usually an employer is a question of fact to be determined in the light of all the circumstances in each case. There is no formula appropriate in all cases which can be used to answer the question. As to a past employment relationship, it may be relevant to know how long ago the person ceased to be an actual employer or to understand why the person ceased to be an actual employer. As to future employment, it may be relevant to know when such employment is to commence or resume, and the circumstances of any delay in commencing or resuming employment.” 8

[18] In relation to whether a person is “usually an employee” his Honour said:

“In September 2001, before Belandra decided not to re-employ them, the Belandra employees were persons whose usual occupation was that of employee. They had been employees of Belandra until 20 June 2001, and immediately afterwards they were waiting to be re-employed by Belandra when the works reopened. Therefore, although the Belandra employees were not in an employment relationship with Belandra at the time of the decision not to re-employ them, they were employees within the extended definition of employee in the Act. They were therefore in a position which, if altered to their prejudice, could found a claim to a breach of s 298K(1)(c).” 9 

[19] In Belandra North J was considering the application of the extended definitions of employer and employee in circumstances in the context of former legislative provisions protecting freedom of association. It was contended in Belandra that the employer had altered the position of former employees to their prejudice by refusing to re-employ them, contrary to undertakings the employer had given, after its premises had been destroyed by fire and re-established – albeit the enterprise was operated by a different entity. It was further contended that the refusal to re-employ the employees was for prohibited reasons involving union membership and rights the employees had under a collective agreement. The Respondents argued that the extended definitions of employer and employee did not apply to the relevant provisions of the Act dealing with freedom of association. Rejecting this contention, North J held:

“Finally, in principle, there is good reason for the extended definition to apply. Section 298K(1) is found in Pt XA which is concerned with “freedom of association”. The objects of the Part are set out in s 298A and include:

As well as the objects set out in section 3, this Part has these objects:

(a) to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and

(b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations.

The provisions, thus, seek to ensure that certain basic freedoms are available to all participants in the workplace. The objects of the Part are advanced if the scope of the Part is interpreted as reaching beyond persons who are presently employers to persons who are usually employers.” 10

[20] Relevant to the present case, there are decisions of the Commission where it has been held that a former employee has standing to make an application under s. 225 for termination of an enterprise agreement if the employee was employed at the time the application was made. 11 It has also been held that a former employee who ceased employment before an application under s. 225 was made, does not have standing to make an application for termination of an agreement under s. 225. In Re: Footlong Subs Employment Services Pty Ltd Employee Collective Agreement 2007 Colman DP made the following observations:

“[12] … Section 225 states that an employee covered by an enterprise agreement may apply to terminate it. It does not say or imply anything about the employee having to remain employed after the application is made. Indeed section 225 is concerned only with making an application under s.225. How the Commission must then deal with such an application is addressed in s.226. This provides that ‘if an application has been made’, the Commission must terminate the agreement if it is satisfied that it is not contrary to the public interest to do so, and the Commission considers it appropriate to terminate the agreement in all the circumstances. Section 226 makes no reference to the applicant. Its premise is that an application has been made under s.225. Section 226(b) requires the Commission to take into account the views of ‘the employees’, employers and organisations covered by the agreement, and the circumstances of those persons. No reference is made to the views of the applicant.

[13] There is no textual basis for the proposition that the Commission cannot deal with an application made under s.225 of the FW Act after an applicant ceases to be employed by the relevant employer. This contention reads into sections 225 and 226 words that are not there. The fact that the applicant is no longer employed by the company and is not now covered by the Agreement does not affect the validity of her application. In this regard, I concur with the views expressed by DP Bull in Menchon v Landrex Pty Ltd.

[14] The company’s original correspondence to the Commission raised a related contention, namely that the person or entity that makes the application under s.225 must also be the one to prosecute it, and that Ms Lennox could not leave her matter in the hands of the SDA. The company’s written submissions do not refer to this contention. However, there is nothing to suggest to me that Ms Lennox is not prosecuting her application. She participated in the mention of 14 February 2018, together with the SDA, of which she is a member. The factual premise of the contention is not made out. In my view, Ms Lennox continues to agitate her application.” 12

[21] In the present case, I proceed on the basis that it is necessary that the Applicant was an employee of the Respondent within the meaning of s. 13 of the Act, at the point the termination application was made. However, I do not accept the submission of the Respondent that the distinction between the termination of a contract of employment and an employment relationship, is determinative of standing to make an application for termination of an enterprise agreement, in light of the extended definitions of “employee” and “employer” for the purposes of the provision. The relevance of this distinction in the present case is discussed later.

[22] As a general proposition, this approach is consistent with the legislative provisions insofar as an employee is covered by an enterprise agreement in relation to particular employment. However, I also note that the extended definition of “employee” in s. 13 of the Act applies to all of the provisions in Part 2 – 4 and, as previously noted, includes a person who is usually an employee and it is arguable that this extends to persons who are not presently employed.

[23] Coverage is governed by the terms of the agreement itself and I do not rule out the possibility that there may be some enterprise agreements with sufficiently broad coverage clauses that have operation to persons who are not currently, but are usually, employed by the employer. In the present case, for reasons which will become apparent, it is not necessary to decide this point.

EVIDENCE

[24] The evidence relevant to the matters in dispute can be summarised as follows. Mr Purcell is the sole director of Willing Workers as well as the owner and operator of Dingo Blue Backpackers (Dingo Blue) in Bundaberg. Dingo Blue is a working hostel and coordinates staff for many employers including Willing Workers. Willing Workers and Dingo Blue operate collectively to provide farm work and accommodation for people seeking work in the horticulture industry in the Bundaberg region. Willing Workers provides the work and Dingo Blue provides the accommodation. Dingo Blue’s website also lists vacancies for work with Willing Workers, although Dingo Blue does not provide work solely with Willing Workers. Dingo Blue also sends staff to farms where Willing Workers is not the employer. Dingo Blue charges workers for accommodation which includes transport to work locations.

[25] Mr Purcell states that workers are placed on worksheets/rosters the night before they are due to start work. The rosters are set out on A3 sheets which are placed at the Hostel reception at around 7.30 pm on the night before work is to be undertaken. According to Mr Purcell upon check-in guests are advised that they are required to check the worklists/rosters every night to ensure they understand when and where they are working the next day. All workers must advise their work manager if they are unable to work a rostered shift and managers’ numbers are at the top of the roster sheet.

[26] Mr Purcell also states that it is a requirement that people staying in hostel accommodation intend to work for one of Dingo Blue’s clients during their stay. Room rates of $215 per week include transport costs to and from work at client farms/sheds. Dingo Blue requires payment for accommodation from workers a week in advance and the worklists/rosters clearly request that workers provide 7 days’ notice of their leaving date. Further, Mr Purcell states:

“If a worker advises the hostel staff that they are checking out of the hostel, then that is understood by both the worker and Willing Workers to be an expression by conduct that the worker has resigned and is no longer ready, willing or able to perform any other work after the day before checkout at all nor have they any intention to do so. Workers are automatically taken off worklists/rosters the night prior to their departure.” 13

[27] Under cross-examination, Mr Purcell agreed that the 10.00 am checkout time is not stated anywhere in writing. Mr Findlay also agreed that 10.00 am is not an explicit time but people must leave the hostel on the day that they check out and cannot stay another night. Mr Purcell also agreed that everything in his statement was information told to him by his staff rather than based on his own personal knowledge.

[28] Mr Greenwood stated in his evidence that it is “widely accepted in the working hostel industry that when a guest indicates their intention to leave the hostel their last possible day of employment will be the day before check-out and they are deemed to be no longer employed from the last day of employment”. Mr Greenwood agreed under cross-examination that he had no direct knowledge of the circumstances of the Applicant’s employment with Willing Workers or the cessation of that employment.

[29] Mr Findlay is the Operations Manager of Willing Workers, having held this position for approximately 3 and a half years. Mr Findlay is also the Work Manager of the Dingo Blue Backpackers, which operates the Dingo One Hostel and the Dingo Base Hostel in Bundaberg. On most days, Mr Findlay works at the Dingo One Hostel. Mr Findlay coordinates staff for many employers, of which Willing Workers is one. There are some farms at which Mr Findlay coordinates workers where Willing Workers is not the employer. Mr Findlay is responsible for determining where and when Hotel guests will be working on a daily basis. This includes co-ordination of and allocation of daily worklists/rosters which Mr Findlay starts to prepare at around 4.00 pm to 5.00 pm each day and are placed at reception at around 7.30 or 8.00 pm at night.

[30] According to Mr Findlay it is common in the horticultural industry for workers staying at hostels to be provided with work at specific farms via a labour hire company. Vacancies for work are also listed on hostel websites and it is a requirement that workers stay at the hostels in order for work to be provided to them. Mr Findlay also said that it is “well known” in the horticultural industry that as soon as a worker gives notice that they are leaving the hostel it also means they are leaving their employment. Workers pay weekly accommodation fees to the hostel, which usually include an amount for transportation costs to and from the farms.

[31] Mr Paterson-Russell checked into the Dingo One Hostel on 1 October 2019. The check in form completed by Mr Paterson-Russell on this date is in evidence before the Commission. The Form is headed: Dingoblue Backpackers and refers to the Dingo 1/Base Q Working Hostel Group. Relevant points evidence from the check in form are:

•  In response to the question “[D]uration of work wanted” there are scribbles, where the answer provided has been scribbled over;

•  Attached to the check in form are the “House Rules”, which include:

•  No ability to ask for a rent deduction if the guest is not working;

•  It is the guest’s responsibility to check the worklist each night and arrive on time for scheduled transfers to work;

•  A failure to go to work when a guest is on the worklist may result in the guest losing their job and no further work being offered;

•  Those employed in an hourly paid role they must give 1 weeks’ notice of any intention to leave;

•  Contract workers must give 48 hours’ notice;

•  Failing to give notice will result in a loss of bond and no further work will be provided;

•  Guests are responsible for ensuring that they attend work each day with required clothing and PPE. 14

[32] Mr Findlay’s evidence was that the Applicant was initially offered “piecework” at a farm called Hakims and was worked at Hakims on 8, 9, 10 and 11 October 2019. The Applicant failed to attend work at Hakims on 13 October 2019 and 31 October 2019 and did not give notification. Mr Findlay also states that on 13 October an opportunity arose for the Applicant to work as part of a team with Dons Fort Citrus, a client of Willing Workers, on an hourly basis as a part-time employee. The Applicant was provided with relevant paperwork by Ms Vidal, as Mr Findlay was absent on annual leave.

[33] Employees of Willing Workers are covered by the Agreement which contains the following provisions:

“3. APPLICATION

3.1 This Agreement shall apply to the Employer’s employees who are engaged by the Employer (Employees)

3.2 The parties to this Agreement are:

(a) David Purcell as Trustee for the Willing Workers Trust (Employer) and

(b) The Employees.

4. PERIOD OF OPERATION AND VARIATIONS

4.1 This agreement shall operate from the date of approval by the Fair Work Australia (FWA) and shall have a nominal expiry date of 4 years from that date.

4.2 The parties may amend or vary this agreement at any time throughout its period of operations. Such variation(s) or amendment(s) shall have no effect unless and until:

(a) agreed by a majority of the Employees and the Employer: and

(b) approved by the FWA.

5. OPERATION OF AGREEMENT

This Enterprise Agreement is to be read and interpreted in conjunction with the Horticulture Award 2010 (Award). The Award shall apply where the Agreement is silent. In the event of any inconsistency between this Agreement and the Award, the terms of this Agreement shall prevail.

…

7. CONDITIONS OF EMPLOYMENT

7.1 Contract of Employment

Employees will be employed in one of the following categories:

(a) full-time employees;

(b) part-time employees; or

(c) casual employees.

At the time of engagement the Employer will inform each Employee of the terms of their engagement and in particular whether they are to be full-time, part-time or casual.

7.2 Full-time employment

A full-time employee is an employee who is engaged to work an average of 38 ordinary hours per week.

7.3 Part-time employment

A part-time employee is an employee who:

(a) is engaged to work reasonably predictable hours each week on a regular pattern of work which shall be less than those of a full-time employee; and

(b) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.

7.4 Casual employment

A casual employee is one engaged and paid as such. A casual employee’s ordinary hours of work are the lesser of an average of 38 hours per week or the hours required to be worked by the employer. A casual employee will not be entitled to annual leave, personal/carer’s leave, notice of termination, redundancy benefits and other entitlements of full-time or part-time employment provided for in this award.”

[34] Clause 8 of the Agreement contains rates of pay including a flat hourly rate for part-time and casual employees. The Agreement provides that for part-time employees the flat hourly rate incorporates payment in advance for annual leave and leave loading. The Agreement also contains a provision allowing an Individual Flexibility Agreement to be made. Mr Paterson-Russell’s employment with Willing Workers was the subject of a written contract of employment. That contract was in writing and in evidence before the Commission. 15 The contract is styled “PART-TIME EMPLOYMENT AGREEMENT”. The parties to the contract are Willing Workers and Mr Paterson-Russell. The Part-Time Employment Agreement relevantly states:

“1. You will be employed on a part-time basis pursuant to and agree to the terms of the Willing Workers Enterprise Agreement 2012 (AG2012/ 11754) ("Enterprise Agreement") and this employment agreement and the attached Individual Flexibility Agreement.

2. Your rate of pay in accordance with 8.1 of the Enterprise Agreement will be an amount of $19.49 for each hour of work performed.

3. The employer can roster you to work ordinary hours of up to 152 hours over a four week period and you agree ordinary hours can be worked up to 12 hours per day and on any day from Monday to Saturday. You will be paid the abovementioned rate in paragraph 2 for those ordinary hours. In addition, during the months of October to December and April to August (inclusive) you may choose to volunteer additional hours in excess of 152 hours over a four week period and will be paid the abovementioned rate of pay for those additional hours. The voluntary additional hours may be worked any day Monday to Sunday and on Public Holidays.

4. You will be engaged to work reasonably predictable hours on a regular pattern. You understand and agree that due to the nature of the work, the industry and because of a number of factors beyond our control we may need to vary the pattern or hours of work from time to time and you consent and agree to such variations being made by the business as needed .

5. Upon commencement you will be placed to work at a particular client's premises/site, however, you understand and agree that you may be directed to work by us at any other client premises/site at any stage and for any reason during your employment. It will be a reasonable lawful direction for us to direct you to do so and any failure by you to abide by such a direction will amount to conduct enabling us to terminate your employment immediately without notice for serious misconduct, that being, behaving in a manner that is inconsistent with the continuance of your employment.

6. Your employment will be subject to a 6 month probationary period during which time your employment may be terminated by you or us for any reason by giving each other 1 weeks notice, or in the case of the employer, giving 1 weeks notice or the equivalent payment in lieu of notice.

7. You will be entitled to payment of superannuation in accordance with any applicable legislation.

8. Subject to the requirements above at clause 5, the employer or the employee can terminate the employment at any stage and for whatever lawful reason by giving the other notice as follows:

[Table reflecting s.117 of the Act]

Increase the periods above by 1 week if the employer is giving notice and the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.

The employer in its sole discretion is permitted to pay the employee in lieu of notice (in full or in part) rather than have the employee serve the notice period (in full or in part). The Employer does not give the employee the abovementioned notice of termination if the employee has engaged in serious misconduct in the opinion of the employer as defined in the [Regulations].

Without limiting in any way the employer’s ability to terminate the employee’s employment in the abovementioned paragraphs, the employer will be entitled to terminate the employee’s employment if the employee fails to maintain any visa or is in breach of any visa requirements.”

[35] Clause 15 of the contract provides:

“This Agreement constitutes an entire Agreement of the parties in respect of the matters dealt with in it and supersedes all prior agreements, understandings and negotiations in respect of the matters dealt within it. If part or all of this agreement is illegal or unenforceable for any reason then that part will be severed from this agreement and the remaining provisions of this agreement continue in force. This Agreement may not be changed or modified in any way subsequent to its execution accept (sic) in writing signed by the employer and the employee.”

[36] Mr Paterson-Russell signed the contract on 14 October 2019. On that date, Mr Paterson-Russell also signed an Individual Flexibility Agreement which did not change the part-time basis of his employment. Mr Paterson-Russell performed work at Dons Fort on 15, 18, 23, 25 and 29 October 2019. Mr Findlay said that he confirmed that none of the team were required to work on 30 October 2019 which was the day off for the team. It was common for Mr Findlay to roster hourly rate employees who only worked for a few days per week, to perform other piecework shifts on days when they were not rostered to work for hourly rates. The Applicant was rostered to work at Hakims on 31 October but did not present for work.

[37] Mr Findlay states that “at some point in time” Ms Vidal or Mr Perederly received confirmation from Mr Paterson-Russell that he was checking out on 1 November 2019 and “that his last day of work would be 31 October 2019”. Mr Findlay states that the last day of work would never be the same as the day of check-out. “Usually” guests will be asked when they want their last day of work to be and the staff member will record this date in the MyHostel system. A printout from the MyHostel system was in evidence in relation to the Applicant, and in the field “Last Work Date” it states 31/10/2019. There is also a check-box, indicating “Dates Confirmed” that has been checked.

[38] Mr Findlay also said that on 31 October, Mr Paterson-Russell was due to pay a further weeks’ rent in the amount of $215 and paid rent for one night – 31 October 2019 – as he was checking out the next day. Mr Findlay said that when he did the worklists on the afternoon of 31 October 2019, he knew that the Applicant’s last day of work was 31 October. The Applicant was not on the list of “available” workers and the only reason for this is when information has been provided that a “guest” is leaving the following day or has not shown up to check in. The Applicant was not rostered to work anywhere on 1 November 2019.

[39] Mr Findlay also pointed to the Applicant’s evidence that he had plans for 1 November as indicating that he was leaving on that date and his last day of employment was 31 October 2019. In relation to the Applicant’s evidence that he could not have checked out because he had not returned his keys, Mr Findlay said that no permission was given for the Applicant to keep his keys and that check out time was 10.00 am on 1 November 2019.

[40] Under cross-examination Mr Findlay maintained that guests know that the hostel checkout time is 10.00 am because they are told this by management at the hostel. Mr Findlay also agreed that this is verbal communication and there is no written documentation stating the 10.00 am checkout time. Mr Findlay also said that a checkout is constituted by a guest advising their last working day to management at the hostel, tidying their room, taking out rubbish, removing dirty linen from the bed , collecting food from the fridge and dry storage and leaving their key and checkout form under the door of reception if there is no-one at reception at the time the guest leaves. Mr Findlay agreed that the Applicant did not give seven days’ notice that he was checking out as required by the “House Rules” but was refunded his bond regardless. Mr Findlay also agreed that he did not know when or what time the Applicant completed checkout. In response to the proposition that the Applicant returned his key and the checkout form on Sunday 3 November 2019, Mr Findlay said he was unaware that the Applicant was still in the hostel after 1 November.

[41] Mr Findlay also said that it is not a regular thing for backpackers to contact him if they were sick and unable to work and that they usually contacted Ms Jones about such matters. Mr Findlay agreed that there is a high percentage of non-attendance at work over weekends compared to weekdays. Mr Findlay said that contrary to Mr Purcell’s statement he had not tried to personally find the Applicant on 31 October and had not told Mr Purcell this.

[42] Ms Vidal worked at reception at Dingo One Hostel with her partner Mr Andre Perederly. Ms Vidal’s evidence was that at some point between 20 and 23 October 2019, the Applicant asked her how much notice he had to give to check out of the hostel and she informed him that he was required to give 1 weeks’ notice. Ms Vidal said that “later on” the Applicant gave notice that he would be checking out of the hostel on 1 November 2019. Ms Vidal also said that it is her regular practice to ask guests when they give notice if they want their last working day to be noted as the day before they check out and that: “both dates (check out and last working day) are entered into the MyHostel system as the same moment the guests manifested it. Ms Vidal tendered a copy of an extract from the MyHostel System showing that the Applicant’s last working day was 31 October 2019 and his check out date was 1 November.

[43] Ms Vidal does not recall the Applicant speaking with her and stating that he was happy to work the rest of the week at Dons Fort or inquiring about further work opportunities. Ms Vidal also does not recall the Applicant asking to extend his stay beyond 1 November 2019. The Applicant was rostered to work at Hakims on 31 October and did not contact Ms Vidal, either before or after the shift, to advise that he was unable to attend or why he had not attended. Further, Ms Vidal does not recall any discussion with the Applicant about storing bags or staying longer, and Ms Vidal maintained that she would not have agreed to this and that she did not give the Applicant permission to keep the hostel key after his checkout date of 1 November 2019.

[44] Ms Vidal agreed under cross-examination that she may have forgotten to complete the Applicant’s checkout immediately upon him telling her his checkout date and that she could not confirm whether the Applicant’s checkout was completed on Friday 1 November or Sunday 3 November 2019. Ms Vidal could not remember when the Applicant returned his key and checkout form by placing them under the reception door. In response to the proposition that she had seen the Applicant on 31 October when he paid his rent, but had not commented on his failure to attend work on that date, Ms Vidal said that she was the receptionist at the hostel and was not in charge of chasing people when they did not go to work. Ms Vidal agreed that it is common for people not to report for piecework jobs on weekends and that it was also common that they did not let her, or Ms Jones, know that they were not attending.

[45] Ms Vidal said that her impression of the Applicant when he checked in to the hostel was that he was someone who wanted to make money as the Applicant told her that he was only staying for one month before he was going travelling. Ms Vidal did not recall having a discussion with the Applicant on 31 October about the checkout process or the Applicant asking about the price of remaining for two nights and whether he could check out a day earlier. Ms Vidal also did not recall the Applicant asking her if he could leave his things in the room and collect them on Saturday 2 November 2019 and said she would not have agreed to this request if it had been made.

[46] Ms Jones confirmed that she provided the Applicant with the paperwork in relation to hourly rates work at Dons Fort around 14 October 2019. Ms Jones created the worklist/roster for 15 October 2019. On 31 October 2019, the Applicant failed to catch the bus or to attend work for his allocated shift. Ms Jones states that she drove over to Dingo One to try to find the Applicant that day, but was unable to locate him in his room. Ms Jones also states that at no time did the Applicant come to see her to discuss why he had not shown up. Ms Jones further states that at no time did she give permission for the Applicant to return his key late or for any staff to approve the late return of the key.

[47] Under cross-examination Ms Jones said that she had no knowledge of the Applicant’s checkout and was not responsible for ensuring he complied with the house rules. Ms Jones agreed that the checkout process is complete when the key is returned and that it was possible the Applicant had not checked out if his key was not returned by 10.59 am on 1 November 2019. Ms Jones was asked in cross-examination whether she had received any feedback about the Applicant’s work performance from Dons Fort. Ms Jones referred to a text message on her mobile telephone received at 1.02 pm on 31 October 2019 which she read aloud at the hearing, as follows:

“We are packing at 7.00 am tomorrow. Please may I ask for the four boys and four girls if possible. Can we cut the newest girl and Rory Paterson-Russell. She has done nothing wrong last in, the slowest etc. A pity because Rory was a decent worker, but rubbed the QA girls and Renee up the wrong way. The constant asking of questions about what people earned, what the machinery was worth…and general pain in the arse. On Tuesday he asked our QA for lemons to take home and was told ‘no’ because they are not ours. He then went off and found girl from Stensgroup who gave him some. He did not steal them but this is the DFP shed and he should have respected what our QA told him. He will learn from this I hope and keep his mouth shut at his next job. He is a good worker, so I don’t want to deny his chances of working elsewhere.” 16

[48] The text message was not referred to in Ms Jones’ evidence-in-chief. In response to a question from the Applicant about whether he had been made aware of the message, Ms Jones said that she had tried to find the Applicant on 31 October to tell him about the message and that he would not be working at Dons Fort again, but had been unable to do so. In response to a question from me about why she had attempted to find the Applicant, Ms Jones said that she did this with all the backpackers when they were laid off or fired from a job, instead of them just finding out by reading the worklist. Ms Jones agreed with a proposition put by me that it was necessary to let the Applicant know about the text message because he was expecting to work at Dons Fort on 1 November 2019. Ms Jones also said that the text was sent to her because Mr Findlay was on leave.

[49] Mr Findlay was recalled and asked about the text message from Dons Fort and his whereabouts on 31 October 2019. Mr Findlay said that he was not aware of the text message when he prepared the worklist for 1 November and had left the Applicant off the worklist because he was not available on the system due to the fact that he was checking out that day. Mr Findlay maintained that he was not on leave on 31 October but was working from home. When Mr Findlay found out about the text message it was irrelevant because the Applicant had already checked out of the hostel.

[50] The Applicant also referred to Annexure PF-4 to Mr Findlay’s statement which indicated that he was rostered to work at Dons Fort on 30 October 2019 and Annexure DP-7 to Mr Purcell’s statement, showing the persons rostered to work at Dons Fort on 1 November 2019. The Applicant pointed to the fact that his name and that of another person – Santiago Pfaff – are on the list form 30 October and not on the list for 1 November, consistent with the text message received by Ms Jones and indicating that his name was removed as a result of that text message and not because of anything he said to Ms Vidal when discussing his checkout.

[51] Mr Purcell tendered documentation evidencing that the Applicant paid a weeks’ rent on 24 October which would have taken him up to Wednesday 30 October 2019. Mr Purcell said that by making this payment, the Applicant indicated his intention to work for the week. Mr Purcell also said that the Applicant worked on 29 October and that consistent with the pattern of days he worked with Dons Fort, the Applicant was not going to work on 30 October 2019. The Applicant was expected to check worklists/rosters for further allocated work for his next and last day – 31 October 2019. The Applicant did not catch the bus on 31 October and failed to attend work for his allocated shift. The Applicant also failed to contact the work managers to indicate that he could not work.

[52] It is Mr Purcell’s understanding that the Applicant was due to pay rent on 31 October but that he gave notice to hostel staff that he was leaving and checking out the following day. Rather than paying a weeks’ rent, the Applicant paid for the night of 31 October 2019 only. According to Mr Purcell, by giving notice to the staff that he was leaving on 1 November 2019, the Applicant would have been recorded in the hostel system as leaving on that date and that his last day of employment was 31 October 2019 at the latest. As such, the Applicant would not have been considered for a worklist for the checkout day. Mr Purcell tendered a worklist/roster for that date, confirming that the Applicant was not on the worklist/roster. 17 This would also have meant that the Applicant was required to check out of the hostel by 10.00 am on 1 November 2019. Mr Purcell also pointed to the fact that the Applicant’s work visa was due to expire on 5 November 2019. Mr Purcell agreed that the Applicant’s deposit was returned despite him not complying with notice requirements upon his departure and maintained that it is not his practice to retain deposits unless a room is seriously damaged.

[53] The Applicant said that during his residency at Dingo Blue he did not hear, see or speak to Mr Purcell. The Applicant agreed that he resided at Dingo Blue from 1 October until 1 November 2019. The Applicant met with Mr Findlay on 2 October 2019 and told Mr Findlay about his experience and that he wished to be provided with hourly paid work. The Applicant did not speak to Mr Findlay again after this date. The Applicant said that he undertook piecework at Hakims on 8 to 11 October 2019. After discussion with colleagues the Applicant decided not to attend for work at Hakims on Saturday 12 or Sunday 13 October as was informed that not attending a piecework job over the weekend was commonplace behaviour, and that contrary to the official stance by Willing Workers there would be no repercussions. The Applicant also said that the low piecework rates also contributed to his decision not to work, and this contributed to all of his decisions not to work.

[54] The Applicant said that on 14 October 2019, he attended a meeting at which he signed induction documents and safety forms for a new hourly job he would be starting. The Applicant then proceeded to work at Dons Fort on Tuesday 15, Friday 18, Wednesday 23, Friday 25 and Tuesday 29 October 2019. On the evening of 30 October, the Applicant saw his name on the schedule to work on 31 October at Hakims and decided not to work that shift because of the low piecework rates.

[55] In relation to checking out, the Applicant said that his original plan was to leave the hostel on Saturday 2 November, which required that he give notice to a member of management, either verbally or in writing, on Saturday 26 October 2019. The Applicant did not give the required notice. The Applicant said that on Sunday 27 October or Monday 28 October, he contacted Ms Vidal by text or iMessage and advised that would like to give his notice to leave on Saturday 2 November and queried whether he would receive his $100 deposit back in circumstances where he was not giving the required notice.

[56] The Applicant said that he spoke to Ms Vidal and Mr Perederly in the reception area on 29 October 2019 to reconfirm that he would receive his deposit and to apologise for the delay in telling them he was leaving. The Applicant also said that he told Ms Vidal and Mr Perederly that he was happy to work for the rest of the week at Dons Fort and that he needed to work to earn money. Ms Vidal and Mr Perederly said that they would pass this on. According to the Applicant, his final question was whether he could pay two days rent only, as he was checking out on 2 November and Ms Vidal and Mr Perederly told him this would be possible and the cost would be $60 for two nights.

[57] On Thursday 31 October when his rent was due, the Applicant asked Ms Vidal, in person at the reception, whether he was on the schedule to work the next day – 1 November 2019. The Applicant said that he was told that Dons Fort was not working and he assumed that everyone who worked as Dons Fort had the day off as well. This belief was consistent with what the Applicant was told by the Dons Fort manager who said on Tuesday 29 October that there would probably be no more work until 4 November.

[58] The Applicant said that on learning he would not be working on 1 November he asked Ms Vidal whether he could check out 1 day earlier as a friend had offered the Applicant a nights accommodation if he needed it. Ms Vidal said that this would not be a problem and that the Applicant would still receive a refund of his deposit, despite the house rules stating that his deposit would not be refunded. The Applicant then paid for one extra night rather than the two he had been planning to pay for. The Applicant tendered details of a bank transfer in the amount of $60 that he made into his account four minutes before paying his rent, evidencing that he had intended to pay rent for two nights. The Applicant also said that during this conversation he told Ms Vidal that he would be available to work at Dons Fort.

[59] The Applicant contends that there is no checkout time stated in the rooms, the house rules or on the website. Accordingly, the Applicant made a request that he be permitted to check out over two days – Friday and Saturday – and leave some of his belongings at the hostel as he could not transport them all in his car. The Applicant said that he had plans for the Friday night and left Friday open for work. Ms Vidal told the Applicant that this was not a problem. The Applicant removed the last of his belongings on the morning of Saturday 2 November and returned his key by leaving it under the hostel reception door, on Sunday 3 November 2019.

[60] The Applicant received a payslip for his final active pay period on 5 November 2019 for the period from 28 October to 3 November. On Tuesday 10 November the Applicant received a final payslip with the payment being made on Thursday 12 November. It was submitted by the Applicant that the Agreement and the individual flexibility agreement are silent about payment of wages, and that the Award at clause 19.3 requires that when a final pay is paid by electronic transfer of funds, all entitlements must be paid within seven days of employment ending. The payslips tendered by the Applicant indicate that he was paid for 3.25 hours worked in the period ending 3 November 2019 and that he was paid accrued annual leave and leave loading in the pay period ending 10 November 2019.

[61] The Applicant asserts that if his employment ended on 31 October 2019, then Willing Workers breached Award requirements by failing to pay his entitlements within seven days of the date his employment ended. Accordingly, the Applicant submits that the date on which his employment ended must be determined by following clause 19.3 of the Award. The Applicant also tendered evidence of his bond being refunded to him on 8 November 2019.

[62] The Applicant queried the veracity of Ms Jones’ evidence that she had attempted to find him on 31 October to discuss work, pointing out that she knew both his room number and his mobile telephone number and had used his mobile telephone to contact him in the past. The Applicant also said that Mr Greenwood’s statement is not credible on the basis that the Bundaberg Hostel Association has founded three hostels – Dingo Blue, East Bundaberg Backpackers and North Bundaberg Backpackers – and Mr Greenwood as the owner of North Bundaberg Backpackers shares a business philosophy with Mr Purcell.

[63] This business philosophy is said to be reflected in the fact that East Bundaberg Backpackers contracts for various farms under the company Objectpro Information Systems Pty Ltd T/A Farmpro Labour and like Willing Workers, has an enterprise agreement which allows for hours of work of part-time employees to be averaged across 12 months so that they can be engaged like casuals without being paid casual loading. The Applicant states that most employees are backpackers who only need to work 88 days and these are usually worked in a 4 to 4.5 month period.

[64] Under cross-examination the Applicant agreed that when he arrived at the Dingo One Hostel he had plans to leave Australia on 4 November 2019. The Applicant also agreed that on 16 September 2019 he had booked a flight to Vietnam departing Australia on 14 October and intended to meet his partner there and to remain in Vietnam until 20 November 2019. The Applicant further agreed that he intended to leave Bundaberg on 3 November and had made a booking on a train on that date. The Applicant agreed that he intended to be out of Bundaberg and not available for work during that time. In response to the proposition that he had no intention of working for Willing Workers again after he left Bundaberg on 3 November 2019, the Applicant said that he did not have much of an intention of doing so. Later the Applicant said that he thought the Willing Workers Agreement was unfair and that he did not think he would work for the Company in the foreseeable future while it had that Agreement but could not guarantee with certainty that he would never work for the Company again.

[65] The Applicant also agreed that he formed an intention to cease working for Willing Workers before 3 November when he put the checkout form in, but maintained that his intention had always been to work up to the last possible day, which would have been until 1 November as Dons Fort had said they would be working on that date. The Applicant said that he intended to work on that date and file the termination application after work. When he found that he was not working on 1 November, he completed the form in the morning assuming that checkout time would be 12.00 midday as it had been in other hostels where he had stayed. The Applicant also maintained that he had changed his mind at the last moment and decided to check out on 1 November when he found he was not working on that day. Further the Applicant said he presumed that Dons Fort was not working at all on 1 November and had indicated to Ms Vidal that he was available to work on that date and was happy to work.

[66] The Applicant maintained that he believed he was still employed when he filed the termination application because he had not checked out or received his final payments. The Applicant also maintained that he asked Ms Vidal whether he could collect his belongings on Saturday 2 November and Ms Vidal agreed and told him that he could return the key by putting it under the reception door. The Applicant therefore assumed that he could collect his belongings and return the key with the checkout form after he had done so. Later, the Applicant maintained that he intended to work on 1 November but not on 2, 3, 4 or 5 November 2019.

SUBMISSIONS

[67] The Respondent submitted that the employment relationship ended when the Applicant walked out of his employment before 10.59 am on 1 November 2019 and that the Applicant’s employment ended at that time on the basis that this terminated the employment relationship even if the act of termination was wrongful such that the contract remained on foot until discharged by election. 18 The Respondent submitted that on the basis that an employee ceases to be “covered by the agreement’ when the relationship of employment ends, the critical factual issue is whether the Applicant “walked out” of the employment relationship or the relationship ended for some other reason, before 10.59 am on 1 November 2019 when the application was lodged.

[68] The Respondent submitted that on the basis of the evidence before the Commission, before the application was electronically filed at 10.59 am on 1 November 2019:

•  The Applicant had removed himself from the pool of available workers; and

•  Had clearly evinced his intention that he was no longer ready, willing and able to perform any further work and that he did not have any intention to do so, such that the employment relationship between him and the Respondent had ended.

[69] The Respondent further submitted that the Applicant’s evidence that he intended to work on 1 November and changed his mind about it the night before, should not be accepted because it is clear that the Applicant did not intend on having a long term employment relationship with the Respondent and always intended to end the employment relationship in early November 2019. This is said to be evidenced by:

•  The Applicant booking a flight to Hanoi on 16 September (before he started working for the Respondent) which was scheduled to depart Brisbane on 4 November 2019; and

•  The Applicant informing Ms Vidalthat he only intended to stay in Bundaberg for a month as he had done his 88 days and wanted to make some money before travelling.

[70] The Respondent also pointed to what is asserts are numerous changes in the Applicant’s version of events. In this regard, it was submitted that in his first statement dated 20 January 2020 the Applicant made no mention of checking with Ms Vidal on 31 October whether he was on the schedule to work the next day and only did so in his statement of 11 February 2020 when he was alive to the significance of his conduct on 31 October 2019.

[71] Further the Respondent submitted that the Applicant again changed his version of events in his oral evidence and claimed to have checked the work roster at 9.30 pm on 31 October and to have had a discussion with Ms Vidal at 4.45 pm about whether he was working on 1 November. It makes no sense for the Applicant to have checked the worklists/rosters at 9.30 pm if Ms Vidal had told him at 4.45 pm that he was not working on 1 November 2019. Further the Applicant’s version does not accord with other uncontroversial facts including that Dons Fort did work on 1 November 2019 making it highly unlikely that Ms Vidal would have told the Applicant that Dons Fort was not working on that day.

[72] Reference was also made to Ms Vidal’s evidence about her practice to ask guests who gave notice that they were checking out, whether they wanted their last working day to be recorded as the day before check out and to record what guests “manifested”. The hypothesis that Ms Jones may have inserted 31 October into the system as the Applicant’s last working day should also be rejected and Ms Jones’ evidence that the Applicant had simply stopped working for Dons Fort because that farm did not want his labour, should be accepted. Mr Findlay’s evidence that he only found out about the text message Ms Jones received from Dons Fort after he had done the work rosters for 1 November should be accepted and it should also be accepted that Mr Findlay did not roster the Applicant on 1 November, because the Applicant was unavailable to work having announced that he was leaving.

[73] The Respondent submitted the Commission should find:

•  The Applicant had conveyed to the Respondent through Ms Vidal and the information she inserted into the MyHostel system that 31 October was the Applicant’s last possible working day as he was leaving on 1 November 2019;

•  The Applicant was no longer ready, willing and able to perform any work and did not intend to do so; and

•  The Respondent (through Mr Findlay) understood that the Applicant was longer ready and willing to perform any further work and did not have any intention to do so.

[74] Accordingly, the condition for the Commission to exercise power under s. 225 is not satisfied, because the Applicant was not “an employee covered by the agreement” at the time he made his application.

[75] The Applicant submitted that his application is competent on a number of bases. First, the Applicant submitted that the evidence establishes that at the time the termination application was made, he had not walked out of the employment relationship. Second, relying upon the Agreement and the Award, the Applicant’s final pay in relation to his employment with Willing Workers was not paid and received until 12 November 2019. Consequently, the employment ended no earlier than 7 days prior to 12 November 2019. Finally, the Applicant submitted that the reality of his employment was consistent with someone casually employed. Whether or not Mr Paterson-Russell was offered work on 1 November 2019 is not determinative of the underlying employment relationship.

[76] Alternatively, the Applicant submitted that the term “covered” in s. 225 can mean presently covered or previously covered. The Applicant also submitted that no previous decisions of the Commission have determined that “covered” is to be interpreted as only meaning covered in the present tense (ie an employee that is presently covered by the agreement).

CONSIDERATION

[77] After considering all of the evidence, I am satisfied and find that the Applicant was an employee covered by the Agreement when he made the termination application. The Applicant was employed as a part-time employee at the relevant time. Part-time employment is provided for in clause 7.3 of the Agreement and the employer is required by virtue of clause 7.1 to inform employees of the terms of their engagement and whether they are to be full-time, part-time or casual employees. A part-time employee is defined in clause 7.3 of the Agreement as an employee who is engaged to work reasonably predictable hours each week on a regular pattern of work.

[78] The Applicant’s written contract of employment signed by him on 14 October 2019, states that he is employed on a part-time basis with reasonably predictable hours of work on a regular pattern. The contract further provides that the Applicant will be placed at a particular client’s site but may also be directed to work at another client’s premises at any stage and such direction will be lawful and reasonable, and failure to comply will amount to conduct enabling the Respondent to terminate the Applicant’s employment.

[79] The contract also provides for one weeks’ notice to be given by either party, to terminate the employment contract provided that the employer can terminate by giving one weeks’ notice or payment in lieu. The Individual Flexibility Agreement also signed by the Applicant on 14 October 2019 varies the employment contract in a number of respects not relevant to the present case and requires 28 days’ notice of termination by either party.

[80] Consistent with the contract of employment the Applicant was placed at Dons Fort Citrus from 15 October 2019. The Applicant last worked there on 30 October 2019. In my view, it is more probable than not that the Applicant was removed from the list of employees at Dons Fort following the receipt of a text message by Ms Jones at 1.52 pm on 31 October, in which a manager of Dons Fort required his removal from the list of employees. Ms Jones’ attempts to find the Applicant to inform him of his removal from the list, is evidence that the Respondent acknowledged that the Applicant had an expectation that he would be working for Dons Fort on 1 November 2019. Ms Jones acknowledged that her purpose in seeking out the Applicant on that date was to inform him that Dons Fort had requested his removal from its workplace.

[81] There is no evidence that Ms Vidal told the Applicant that he had been removed from the Dons Fort workplace. The Applicant states, and I accept, that he thought no work was being performed at all at Dons Fort on 1 November 2019. Further, the Respondent had the right under the contract to place the Applicant at another location at any time. The Applicant states that he told Ms Vidal that he was prepared to work on 1 November 2019, and I accept that he was available to work on that date.

[82] The Applicant had previously failed to report to work for a weekend shift for which he was to be paid piecework rates without repercussions. At the time Ms Jones was looking for the Applicant to tell him that he had been removed from the team at Dons Fort and when he spoke to Ms Vidal about checking out, no mention was made of his failure to work on 31 October. Further, the Respondent did not rely on the Applicant’s failure to report to a job that he was rostered to attend, as grounds for terminating his employment, in accordance with his contract of employment. The Applicant was available to work at Dons Fort on 1 November and did not do so because he was removed from the team at the request of that Company. In short, the Applicant did not remove himself from the pool of workers and neither did he walk off the job.

[83] There is no basis in the Agreement, the Award, the contract of employment or the Individual Flexibility Agreement, for treating the ending of employment as being synonymous with an employee checking out of hostel accommodation which is owned by the employer. Nor is there any term of the Agreement, the Award, the contract of employment or the Individual Flexibility Agreement, that indicates that an employee will not be provided with work after he or she checks out of the hostel. The mere assertion that it is commonly understood in the working hostel industry that the last day of work is the day before checkout, is not sufficient to determine when the employment of a particular employee ends.

[84] The hostel is a separate entity from Willing Workers and does not employ the guests who reside at the hostel. The employment relationship was between the Applicant and Willing Workers. The Applicant was not in breach of any term of the Agreement, the Award, the contract of employment or the Individual Flexibility Agreement by checking out of the Hostel when he did and by not giving the weeks’ notice required in the hostel’s house rules. I also accept that the Applicant had a discussion with Ms Vidal before the worklists/rosters were posted for 1 November and that his motive for checking out on 1 November rather than 2 November, was that he wanted to save $30 in circumstances where he was not certain that he would not be provided with work at Dons Fort or any other locations on 1 November, rather than because the Applicant was ending his employment on that date.

[85] The Applicant had already been removed from the Dons Fort workforce at 1.52 pm on 31 October 2019, before he confirmed that he wished to check out of the hostel. The Applicant was not aware that this had occurred, and I accept he would have worked at Dons Fort on 1 November 2019 had he been rostered to do so. The Applicant could have worked on the day he checked out and had arranged his affairs so that he could do so if required. Those circumstances do not constitute the Applicant making himself unavailable for work or removing himself from the “pool” of workers. The Applicant was told by Ms Vidal that Dons Fort was not working on 1 November but had no way of knowing that he would not be allocated work until the roster was published at around 9.30 pm on 31 October 2019.

[86] Even if the Applicant repudiated his employment contract by making himself unavailable, acceptance of the repudiation by Willing Workers was required to end the contract. The mere fact of checking out of a hostel, could not constitute repudiation of the Applicant’s contract of employment. Further, the contract of employment provided for the Applicant to give one weeks’ notice of the termination of his employment. While the Applicant did not give a weeks’ notice, an indication that he wanted to check out of the hotel on 1 November was not a clear indication that he also wished to terminate his employment on 31 October 2019. The Respondent’s submission leaves open that the Applicant’s employment ended on 1 November 2019. If that is the case, there is no basis for a finding that it ended before 10.59 am when he filed the termination application. The evidence establishes that at that time, both the Applicant and his possessions were in his allocated room at the hostel.

[87] It is also the case that the employment arrangements operated by the Respondent are that part-time employees are engaged in a manner that resembles casual employment such that they may cease work for a period and then resume work at the same location or another location. In such circumstances, employees are within the extended definition of employee in s. 13 of the Act notwithstanding that they may not be performing work for the Respondent at a particular time. I am also of the view that the definition of “employee” in s. 13 of the Act is not limited to employees in an actual employment relationship at a particular time and may result in persons who are not in such a relationship having standing to make various applications under the Act, including an application to terminate an enterprise agreement, on the basis that they have a subsisting contract of employment which remains on foot notwithstanding that they are not presently performing work under that contract.

[88] While the Applicant left Australia on 4 November and did not return to Bundaberg for 18 days, he did return. At the point the Applicant left Bundaberg, the proposition that he may have worked again for the Respondent could not be ruled out notwithstanding his evidence that it was unlikely. One client had asked that the Applicant not be rostered in its workplace, but the Respondent had other clients with premises at which he could have been rostered to work. It had refunded the Applicant’s accommodation deposit, indicating that any breach of its notice requirements on his part was not an issue that would have prevented the Applicant again residing in a hostel and working for the Respondent.

[89] Even if I accepted the Respondent’s submission that checking out of the hostel is synonymous with terminating employment, the Applicant’s evidence that he did not return his key until 3 November 2019, was not contested. The form the Applicant completed when he checked out was not in evidence. The Applicant had not checked out until he returned his key and the checkout form. None of the Respondent’s witnesses could state when the Applicant took these steps. It is also the case that the Applicant was not paid his accrued annual leave and loading until 12 November 2019, a week after he was paid for the last work that he performed. If the Applicant walked out of his employment on 31 October or 1 November 2019, he should have been paid all of his entitlements including his accrued leave, on 5 November when he was paid for work in the week from 28 October to 3 November. These are matters that indicate that he was an employee within the meaning of s. 13 of the Act when he filed the termination application.

CONCLUSION

[90] For these reasons I conclude that the Applicant had standing to make the termination application. The dismissal application and the objection are dismissed. The termination application is before the Commission and must now be dealt with in the manner provided for in s. 226. Directions will issue for the hearing and determination of the termination application.

DEPUTY PRESIDENT

Appearances:

The Applicant on his own behalf.

Mr AC Harding of Counsel instructed by Mr S Gifford of Gifford Legal for the Respondent.

Hearing details:

2020.

14 February & 21 May.

By video.

Final written submissions:

Applicant: 20 March 2020.

Respondent: 6 March 2020.

Printed by authority of the Commonwealth Government Printer

<PR722271>

 1   Exhibit R1.

 2   Exhibit R2.

 3   Exhibit R3.

 4   Exhibit R4.

 5   Exhibit R5.

 6   Exhibit A1.

 7 (2003) 126 IR 165.

 8   Ibid at 179 – 181.

 9   Ibid at 188.

 10   Ibid at 177.

 11   Ms Simone Lennox v Footlong Subs Employment Services Pty Ltd [2018] FWC 1282; Ms Lorena Menchon v Landrex Pty Ltd [2015] FWCA 8679.

 12   [2018] FWC 1282 at 12 – 14.

 13   Statement of David Purcell Exhibit R5 paragraph 11.

 14   Statement of Phillip Findlay Exhibit R1 Annexure PF-1.

 15   Statement of David Purcell, Exhibit R5, DP-1.

 16   Transcript PN273.

 17   Ibid DP-7.

 18   Automatic Fire Sprinklers Pty Ltd v Watson [1946] HAC 25; 72 CLR 435 per Latham CJ at 451 and Dix Jo at 466; Byrne v Australian Airlines Limited [1995] HCA 24; 185 CLR 410 per Brennan CJ, Dawson and Toohey JJ at 427, 428; Visscher v Giudice [2009] HCA 34; 239 CLR 361 per Heydon, Crennan Kiefel and Bell JJ at 379 – 380 [53].