Samantha Abakir v Cleanaway Operations Pty Ltd
[2023] FWC 3448
•21 DECEMBER 2023
[2023] FWC 3448
The attached document replaces the document previously issued with the above code on 21 December 2023.
In Paragraph [75] the word “four” should read “five”
Liam Butterworth
Associate to Deputy President Anderson.
Dated 22 December 2023
| [2023] FWC 3448 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 365 - Application to deal with contraventions involving dismissal
Samantha Abakir
v
Cleanaway Operations Pty Ltd
(C2023/6340)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 21 DECEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdiction – labour hire arrangement – placement cancelled by host business – whether employed by host business – change of duties – not an employee of host business – not dismissed by respondent – jurisdictional objection upheld – application dismissed
On 16 October 2023 Samantha Abakir (Ms Abakir or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions of the FW Act associated with an alleged dismissal.
Ms Abakir’s application is against Cleanaway Pty Ltd which she claims committed the contraventions (Cleanaway or the respondent).
Cleanaway oppose the application. It filed a response on 8 November 2023 raising a jurisdictional issue.
The jurisdictional issue advanced is that Ms Abakir was not employed by Cleanaway and thus not dismissed by it within the meaning of the FW Act. Cleanaway contend that Ms Abakir was a labour hire employee employed by WorkPac Pty Ltd (WorkPac) and placed to work at Cleanaway under a commercial labour supply arrangement between Cleanaway and WorkPac.
Ms Abakir submits that she was employed by Cleanaway because of the control it exercised over her work, because whilst employed her duties changed at Cleanaway’s initiative from those originally performed and because Cleanaway removed her from its workplace. She says it did so for an unlawful reason, being attempts to secure market rate remuneration for the changed duties.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires the Commission to determine a dispute about the fact of a dismissal from employment under s 365 of the FW Act before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the jurisdictional issue if Ms Abakir’s application is to proceed.
I issued directions on 22 November 2023.
I heard the jurisdictional matter by video on 13 December 2023. Ms Abakir was self-represented. Cleanaway was represented by an external legal practitioner, with permission.[2] I provided Ms Abakir a measure of assistance, consistent with my independent statutory role, to ensure her case was presented and that of Cleanaway appropriately tested.
I received evidence and submissions, including oral evidence from two persons:
· Ms Samantha Abakir (applicant); and
· Mr Leo Oldridge (Cleanaway’s Head of Infrastructure Projects).
Facts relevant to the jurisdictional issue are generally not in dispute save in limited yet important areas, such as whether Ms Abakir was promised direct employment by Cleanaway or promised higher remuneration.
To the extent necessary, I deal with these issues in the body of this decision.
That aside, significant disputes exist over the conclusions to be drawn from relevant facts.
This decision deals solely with the jurisdictional issue; not whether the decision by Cleanaway to end the placement was for an unlawful reason.
Facts
Cleanaway
Cleanaway is a large nationally operating company providing waste management services.
Cleanaway directly employs approximately 7,500 persons.
In addition, Cleanaway supplements its labour force by contracting with labour suppliers when the need arises.
Labour supply agreement with WorkPac
WorkPac is a nationally operating company that supplies labour to businesses via commercial labour supply arrangements.
On 15 December 2020 Cleanaway and WorkPac entered into a labour supply agreement.[3]
Under the arrangement, Cleanaway agreed to appoint WorkPac to its Temporary Labour Supplier Panel and WorkPac agreed to supply persons to Cleanawy for temporary work purposes via a recruitment manager (which, in relation to Ms Abakir, was Hays Recruitment).
Under the terms of the labour supply arrangement, WorkPac employs such persons including paying remuneration as required by law for the work performed. WorkPac then invoices Cleanaway for the services provided, including the cost of wages it has paid. The agreement provides:[4]
“The Service Provider must:
(i)at its own expense, in respect of each of the Temporary Workers employed by it in connection with the provision of the Services, ensure that it complies with all laws that relate to the employment of the Service Provider’s Temporary Workers, including but not limited to complying with the requirements of the Fair Work Act 2009 (Cth) and any Industrial Instrument that applies to any of the Service Provider’s Temporary Workers;”
The agreement also provides that WorkPac will ensure that all persons placed to provide work utilise Cleanaway’s timekeeping system to record hours of work.[5]
Ms Abakir’s employment August 2022
On 15 August 2022 Ms Abakir commenced work at Cleanaway as an “administrative assistant” on placement by WorkPac via Hays Recruitment.
Ms Abakir’s placement was made under the labour hire supply agreement between Cleanaway and WorkPac.
In order to be placed to work at Cleanaway, Ms Abakir was offered and accepted casual employment with WorkPac as an administrative assistant under a written letter of offer dated 10 August 2022.[6] Under the terms of that agreement:
· WorkPac was expressed to be “your employer for this assignment”;[7]
· Ms Abakir was employed and paid as a casual employee under the ‘WorkPac National Clerical Agreement’;[8]
· Cleanaway was expressed to be “the Client”;[9]
· Working hours were expressed to be “dependent on your availability, WorkPac’s business needs, the Client’s needs and safety considerations”;[10]
· Ms Abakir was required to “comply with all site requirements” of Cleanaway and “comply with all WorkPac policies”; and
· “WorkPac may terminate your employment in accordance with the terms of the Industrial Instrument and applicable law”.[11]
In the period to January 2023 Ms Abakir largely undertook data entry duties. She worked from a Cleanaway site at Port Adelaide operated by Cleanaway Pty Ltd.
In the period to January 2023 Ms Abakir worked full time hours but was paid casual rates.
In the period to January 2023 Ms Abakir’s working hours were recorded via the Cleanaway time record system.
In the period to January 2023 Ms Abakir’s day to day work was allocated and supervised by officers of Cleanaway Pty Ltd from whom she took direction and instruction. In the course of doing her work, Ms Abakir used equipment provided by Cleanaway including a laptop, email account and uniform.
In the period to January 2023 Ms Abakir was paid wages and superannuation by WorkPac and could access payslips from WorkPac via an online WorkPac system.
Change of duties January 2023
In mid-January 2023 Cleanaway proposed to Ms Abakir that she change work duties from data entry to project support. Ms Abakir agreed to do so.
From about 23 January 2023 Ms Abakir commenced project support work. In this role Ms Abakir was assigned to a different Cleanaway business (Cleanaway Operations Pty Ltd), reported to different Cleanaway supervisors and managers and, when on site, generally worked from a different location in Adelaide (Wingfield, not Port Adelaide).
Between January 2023 and May 2023 Ms Abakir was paid the same rate of casual remuneration she had been receiving when doing data entry work.
Other arrangements relating to Ms Abakir’s employment remained unchanged. This included access to payslips from WorkPac.[12]
At all relevant times (before and after the change of duties) PAYG group certificates required to be submitted by employers annually to the Australian Taxation Office concerning tax paid on income earned were submitted by WorkPac in relation to earnings by Ms Abakir.[13]
Dispute over remuneration
In the months following the change of duties, and as Ms Abakir became more familiar with project support work, she considered that, although the duties had an administrative character, they were more advanced than data entry.
Ms Abakir raised the issue with her Cleanaway manager. She sought support from her manager for an increase in pay to what she considered a fair market rate reflecting the changed duties.
Fresh employment agreement May 2023
On 26 May 2023 WorkPac sent to Ms Abakir a new “Notice of Offer of Casual Employment”.[14]
The new notice of offer was a proposal for a new casual employment contract performing the duties of an “Administration Assistant” assigned to “Cleanaway Operations Pty Ltd”.
The new contract offered Ms Abakir an increase in her base rate of casual pay from 15 May 2023. Other terms and conditions in the new contract generally remained unchanged from the first written contract. The employer continued to be specified as WorkPac, employment continued under the ‘WorkPac National Clerical Agreement’, Cleanaway continued to be described as the “Client” and payment of wages continued to be made by WorkPac for working hours advised to it by Cleanaway.
Although Ms Abakir believed that the wage increase still fell short of what she considered to be a fair market rate, she accepted the offer. Her evidence was that she did so because it was the only way to secure some form of wage increase.[15]
In the period June to September 2023 Ms Abakir continued to advocate for a higher rate of pay. A factual dispute exists, which I need not resolve to determine the jurisdictional issue, as to whether Ms Abakir was promised a higher rate of pay by Cleanaway managers. What is not in dispute, and is clear from the evidence, is that Ms Abakir became frustrated with what she considered a lack of follow through by Cleanaway managers to secure WorkPac’s agreement to pay her higher wages for project work.
In the period June to September 2023 Ms Abakir continued to be paid by WorkPac and WorkPac continued to invoice Cleanaway for remuneration paid according to Ms Abakir’s time sheets. The invoices and timesheets are in evidence.[16]
Ms Abakir’s assignment at Cleanaway Operations Pty Ltd was due to expire on 22 July 2023. On 11 July 2023 Cleanaway extended the assignment to 30 September 2023.[17] Whether Ms Abakir has been advised of these specified dates is in dispute.[18]
Cessation of work at Cleanaway
On the morning of 27 September 2023 Ms Abakir was contacted by a WorkPac manager (Ms Castro) and informed that Cleanaway had advised WorkPac that it (Cleanaway) had decided to end Ms Abakir’s assignment at Cleanaway.
On the afternoon of 27 September 2023 Ms Abakir was called into a meeting with Cleanaway managers, including Mr Oldridge. Ms Abakir was advised by Cleanaway that it (Cleanaway) had decided to end her assignment and had advised WorkPac accordingly. Cleanaway informed Ms Abakir that the assignment would conclude on 29 September 2023 (the 30 September being a Saturday, which was not a usual working day for Ms Abakir). Ms Abakir was advised that, unlike former assignments which had been rolled over, the current assignment would not be rolled over beyond 30 September 2023.
Ms Abakir worked the following day, 28 September 2023. Although rostered to work on 29 September 2023, Ms Abakir was unavailable to do so.
Ms Abakir’s employment ended on 29 September 2023. As a casual, she was paid by WorkPac up to and including her last shift on 28 September 2023.
On 6 October 2023 WorkPac sent Ms Abakir confirmation of the ending of her assignment at Cleanaway. The letter read:[19]
“RE: Finalisation of Casual Assignment for Noseba Abakir
Dear Noseba,
WorkPac writes in relation to your casual assignment with CLEANAWAY OPERATIONS PTY LTD-DANDENONG-Hays Specialist Recruitment (Client), at (Site) as a Administration Assistant- (NON IWS)-White Collar 11%- Base $36.08.
Further to your conversation on with your WorkPac Representative, the Client has notified WorkPac that they have demobilised your position and revoked your access to Site. This letter therefore serves as confirmation that your assignment with WorkPac’s Client has been finalised, effective immediately.
WorkPac will arrange payment of any monies owed for shifts worked up to and including to be paid out to you on your next regular pay day.
While your assignment with the Client may have come to an end, you are welcome to continue applying for alternative roles with WorkPac. Please visit WorkPac’s website or liaise with your Recruitment Coordinator in this regard.
I also encourage you to utilise WorkPac’s EAP service if you require any further support during this period.
I have enclosed a brochure for your reference.
If you have any questions regarding the contents of this letter, please contact your local WorkPac Representative.
Kind Regards,
Area Manager - Brad Neurath
The WorkPac Group” (emphasis in original)
Ms Abakir, aggrieved that her work at Cleanaway had ended, filed these proceedings on 16 October 2023.
Submissions
Ms Abakir
Ms Abakir submits that she was employed by Cleanaway for the following reasons:
· because of the control it exercised over her work;
· because her duties changed at Cleanaway’s initiative in January 2023 from those originally performed; and
· because Cleanaway removed her from its workplace.
Ms Abakir submits that Cleanaway ended her employment for an unlawful reason, being attempts by her to secure market rate remuneration for the changed duties.
Cleanaway
Cleanaway submit that Ms Abakir was not employed by Cleanaway and thus not dismissed from employment by Cleanaway within the meaning of the FW Act.
Cleanaway contend that Ms Abakir was a labour hire employee employed by WorkPac and placed to work at Cleanaway under a commercial labour supply arrangement between it and WorkPac.
Cleanaway raise a secondary issue that ending the placement (on 29 September 2023) coincided with the conclusion of a specified term (which had been extended to 30 September 2023) and was not, by virtue of the exception in s 386(2)(b) of the FW Act, a dismissal.
Consideration
Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the FW Act) is defined in s 386(1). It provides:
“386 Meaning of dismissed
(1)A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
It is not in dispute that “dismissal” for the purposes of s 386 and thus s 365 requires termination from a contract of employment.
Whilst Ms Abakir and Cleanaway were capable of being a “national system employee” and a “national system employer” within the meaning of the FW Act, whether they were depends on whether a contract of employment regulated their relationship.
The FW Act does not, for the purposes of Part 3-1 (general protections) prescribe a special definition of employer and employee. Those terms have been said to “have their ordinary meanings”.[20] This means that general legal principles established by the courts regulate whether an employment relationship exists.
The question that determines the jurisdictional issue in this matter is whether at the relevant time (the alleged dismissal date, 29 September 2023) a contract of employment existed between Ms Abakir and Cleanaway.
It is not in dispute that, at that time, Ms Abakir was employed within the ordinary meaning of an “employee”. Neither Ms Abakir nor Cleanaway contend that Ms Abakir was an independent contractor.
The question then, simply put, is who was Ms Abakir employed by? If Ms Abakir was not employed by the entity that she has taken action against alleging a breach of general protections (Cleanaway) then the application fails for want of jurisdiction.
The relevant legal principles governing this issue in the context of a labour hire arrangement are well established. These include:
· the mere existence of an arrangement under which a first company provides labour to a second company does not point to the second company being the employer of the labour so provided;[21]
· the interposition of a labour hiring agency between its clients and the workers it hires out to them does not result in an employer-employee relationship between the client and the worker;[22]
· a critical consideration in determining whether the formal arrangements represent the reality of the situation is what might be described as the “commercial authenticity” of those arrangements;[23] and
· there is no concept of dual employment known to Australian law whereby both the labour supplier and the client are concurrently employers of the worker in the triangular labour hire arrangement.[24]
Further, as recently noted by Deputy President Beaumont in a matter raising similar issues, it was observed (without the question being decided) that more recent decisions of the High Court concerning the employment relationship provide an even greater eminence to the employment contract than to its practical working, at least where the formal arrangements are not a sham.[25]
For the following reasons I do not find that Ms Abakir was employed by Cleanaway.
Firstly, the evidence clearly establishes the existence of a commercial labour hire arrangement between Cleanaway and WorkPac under which Ms Abakir was engaged.
Secondly, the evidence clearly establishes that the employment agreements Ms Abakir entered into were with WorkPac. Two such agreements existed during the period of her placements in Cleanaway businesses; that of 10 August 2022 and 26 May 2023.
Thirdly, the evidence clearly establishes that the conduct of the parties was consistent with the labour supply arrangement between WorkPac and Cleanaway and the employment arrangement between WorkPac and Ms Abakir. Ms Abakir’s hours of work were recorded and notified to WorkPac. WorkPac would then pay wages directly to Ms Abakir for the hours notified. WorkPac would then invoice Cleanaway for the sums it paid for the labour services it supplied. Ms Abakir’s submission that WorkPac simply provided “administrative oversight” is not consistent with the formal arrangements that existed nor the implementation in accordance with their terms.
Fourthly, even in light of Ms Abakir’s dissatisfaction with her remuneration once Ms Abakir commenced project work support, the evidence clearly establishes that Ms Abakir was aware of the fact that WorkPac continued to be her employer.[26]
Fifthly, the evidence concerning the 27 September 2023 notification that the placement at Cleanaway would cease made no reference to Cleanaway doing so in the capacity as Ms Abakir’s employer. Oral communication of Cleanaway’s decision to exercise its right to end the placement and to not further renew it was given to Ms Abakir firstly by WorkPac and then by Cleanaway. Cleanaway did not hold itself out to be the employer in that discussion. Further, the written confirmation that the placement had ended was provided by WorkPac, not Cleanaway, by letter dated 6 October 2023.
I do not accept Ms Abakir’s submission that because Cleanaway controlled and directed her day to day work (whether data entry or project support) that this rendered her a Cleanaway employee. It is a common feature of labour hire arrangements that a host business undertakes day to day control and direction of those that provide labour services to it.
Nor do I accept Ms Abakir’s submission that she became an employee of Cleanaway in January 2023 when Cleanawy initiated changes to her duties from data entry to project support. The change in duties was consistent with the rights Cleanaway exercised under the labour supply arrangement; that the duties performed via the supply of Ms Abakir’s casual labour services changed did not alter the triangular nature of the labour hire relationship. That relationship was established by an orthodox commercial labour supply agreement between Cleanaway and WorkPac. Despite suggestions by Ms Abakir, there is no evidence before me that permits any finding or inference that this arrangement or her employment contract was a sham. As WorkPac was truly conducting a labour supply business of its own, the arrangement reflected, to use the words of the Full Bench in Tooheys, “commercial authenticity” and “commercial practicality”.[27]
Nor is there evidence of an employment contract (written or oral) between Cleanaway and Ms Abakir. Ms Abakir relies on the oral discussion in January 2023 between her and Cleanaway managers that changed her duties. This evidence falls far short of establishing an agreement by Cleanaway to directly employ Ms Abakir. That is not what occurred. The change of duties reflected a change of assignment under the then labour supply agreement between Cleanaway and WorkPac.
A related submission by Ms Abakir is that Cleanaway Pty Ltd was the legal entity for whom she conducted data entry work whereas the project support work was performed for a different entity in the Cleanaway group, Cleanaway Operations Pty Ltd. This submission does not advance the jurisdictional contention. These different corporate entities in the Cleanaway group secured Ms Abakir’s services via the same labour supply arrangement with WorkPac. That work was performed for different Cleanaway entities did not alter the fact that the labour supply arrangement operated in respect of both forms of work undertaken.
Ms Abakir correctly points to the fact that a new employment contract between her and WorkPac was not entered into until more than four months (May 2023) after she commenced the changed duties (January 2023). However, for the following reasons this does not alter the aforementioned conclusion.
Firstly, in that intervening five months the labour supply arrangement continued to apply; Ms Abakir continued to be paid by WorkPac who continued to invoice Cleanaway as required by that arrangement. Secondly, as noted, there is no evidence of any oral let alone written employment arrangement between Ms Abakir and Cleanaway that displaced the continuation of the labour hire arrangement. Thirdly, the evidence points to the fact that the revised (new) employment arrangement in May 2023 was primarily to enable Ms Abakir to secure a rise in hourly remuneration (albeit not to her satisfaction). Fourthly, and decisively, at the relevant time the assignment ended (29 September 2023) the new written contract of May 2023 between Ms Abakir and WorkPac was in existence and governing the relationship, irrespective of whatever arrangement existed in the first five months of 2023.
To determine whether Ms Abakir was employed by WorkPac or Cleanaway, I need not make a finding whether the project support work performed by Ms Abakir from January 2023 fell within the broad description of “administration” in the May 2023 employment contract or whether the work was sufficiently clerical in nature to be capable of being covered by the industrial instrument referenced in that agreement. Should it have been necessary to do so, the evidence before me (including the spreadsheet prepared by Ms Abakir[28] and the evidence of Mr Oldridge[29]) tends to point to the fact that, whilst Ms Abakir’s duties changed from data entry to project support and were somewhat at a higher level, they remained largely administrative in character.
Nor is it relevant to determining whether Ms Abakir was employed by WorkPac or Cleanaway to make a finding whether Ms Abakir was correctly paid the hourly rate required by the applicable industrial instrument, or whether the hourly rate paid reflected a fair market rate. Clearly there is a dispute of substance on that question and Ms Abakir, somewhat understandably on the evidence before me, felt let down that Cleanaway had not actioned to a satisfactory degree her request for a fair or fairer market rate.
In support of her submission, Ms Abakir relies on decisions of the High Court and Federal Court concerning the meaning of an employee.[30] Whilst well researched, this submission is misconceived. The cases Ms Abakir references concern the distinction between an employee on the one hand and an independent contractor on the other. As noted, there is no dispute in this matter that Ms Abakir was an employee and not a contractor. These cases do not provide guidance on the matter in issue - the identity of Ms Abakir’s employer.
Considered overall, I do not find that Ms Abakir was employed by Cleanaway. Ms Abakir was an employee of WorkPac at all relevant times. She was, at the relevant time, working for Cleanaway as a labour hire employee under an orthodox labour supply arrangement between Cleanaway and WorkPac.
Conclusion
This being so, Ms Abakir was not dismissed by Cleanaway within the meaning of the FW Act when it ended her placement in its business. This was because she was not employed by Cleanaway.
Having made this finding, I need not deal with the secondary issue raised by Cleanaway that the ending of the placement coincided with the conclusion of its term and was not, in any event, a dismissal.
There being no dismissal from employment by the respondent, there is no jurisdiction to deal further with the application. It must be dismissed. An order giving effect to this decision accompanies its publication.[31]
DEPUTY PRESIDENT
Appearances:
Ms S Abakir, on her own behalf.
Mr T Lange, with permission, with Mr A Celik, on behalf of Cleanaway Operations Pty Ltd
Hearing details:
2023.
13 December (by video).
Adelaide.
[1] [2020] FCAFC 152
[2] Email ‘Chambers – Anderson DP’ 11 December 2023
[3] R4
[4] R4 cl 3(g)(i)
[5] R4 Schedule 1 cl 2.2(f)
[6] A2
[7] A2 page 1 “WorkPac Group of Companies entity”
[8] A2 page 1 paragraph 2
[9] A2 page 1 “Assignment for”
[10] A2 page 1 “Daily Working Hours”
[11] A2 “How WorkPac may terminate your employment”
[12] For example, R1 Pay slip from WorkPac for period 11 September 2023 to 17 September 2023
[13] R2
[14] R3 Annexure A
[15] Recording of Hearing, 13 December 2023, 4:04:19 – 4:04:40
[16] R3 Annexure B
[17] R5
[18] A1 1.1 Email by Ms Abakir 28 September 2023
[19] A1 2.3
[20] Section 335
[21] FP Group Pty Ltd v Tooheys[2013] FWCFB 9605, [19] (Tooheys)
[22] Damevski v Guidice (2003) 129 IR 53, [173]
[23] Tooheys, [22]
[24] Tooheys, [41]; Trakas v PBL Pty Ltd and Trakas v Ready Workforce (A Division of Chandler MacLeod)[2018] FWC 1530, [100] – [118]
[25] Organ v Boom Logistics Limited[2022] FWC 2007, [57] – [60] and [72]
[26] A1 1.2 Email Ms Abakir 26 September 2023 “I was advised by Leo Oldridge that I could not be paid more than the highest level of the Clerks Private Sector Award while I remain with WorkPac (My legal employer)”; Email Ms Abakir 12 May 2023 “I look forward to joining the team as a full-time permanent Cleanaway employee in the next coming months. In the interim…”; Email Ms Abakir 15 June 2023 “I am still eager to become a CWY employee…”; Email Ms Abakir 30 August 2023 “May I please get your help to evading the award rate cap, by converting to a Cleanaway employee.”
[27] Tooheys, [22]
[28] A1 3.9
[29] Recording of Hearing, 13 December 2023, 3:36:17 - 3:37:00
[30] Submission 23 and 29 November 2023
[31] PR769739
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