Steve Cokuzovski v Yarra City Council T/A Yarra City Council
[2018] FWC 155
•12 JANUARY 2018
| [2018] FWC 155 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Steve Cokuzovski
v
Yarra City Council T/A Yarra City Council
(U2017/9931)
DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 12 JANUARY 2018 |
Application for an unfair dismissal remedy – minimum employment period not completed – labour hire arrangement – transfer of business – continuity of service.
[1] This decision concerns an application by Steve Cokuzovski (Applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). It is not in dispute that the Applicant’s employment was terminated by Yarra City Council (Respondent) on 25 August 2017.
[2] The Applicant was employed in the position of Parking Control Officer (Night Crew) with the Respondent (Position). On the basis of the Form F3 – Employer Response to Unfair Dismissal Application, 1 he commenced in the Position on 15 May 2017. The details of Position and the terms of that employment were set out in a letter of offer dated 9 May 2017,2 which the Applicant accepted on 11 May 2017.3
[3] Before commencing employment in the Position pursuant to the 9 May 2017 letter, the Applicant performed work for the Respondent between in or about March 2013 and 14 May 2017. I will refer to this period as the “relevant period.”
[4] The Respondent maintains that throughout the relevant period, the Applicant performed work for the Respondent, but was an employee of McArthur Pty Ltd (McArthur), a labour hire company providing services to the Respondent. Therefore, the Respondent contends that the Applicant is not protected from unfair dismissal because he has not served the minimum employment period set out in s.383(a) of the Act.
[5] The Applicant says that during the relevant period, he was employed directly by the Respondent as a casual employee in the Position, such that he satisfied the minimum employment period. 4 The Applicant says that he was made a direct offer of employment by a Team Leader employed by the Respondent at an interview in or about March 2013, which he accepted (the Applicant’s primary submission).
[6] In the alternative, the Applicant says that he was a transferring employee in relation to a transfer of business from McArthur to the Respondent and he had not been informed in writing by the Respondent that his service with McArthur would not be recognised by the Respondent. Consequently, his period of service with McArthur counted towards his period of employment with the Respondent, such that he satisfied the minimum employment period. 5 The Respondent rejects this submission and says there has been no transfer of business from McArthur to the Respondent.
[7] The matter was the subject of a jurisdictional hearing on 17 November 2017. I had previously granted permission for both the Applicant and the Respondent to be represented by a lawyer or paid agent under s.596 of the Act. At the hearing, the Applicant gave evidence in support of his own application. The Respondent called evidence from Mr Fred Warner, Group Manager People, Culture & Community.
Statutory framework
[8] In order to be protected from unfair dismissal, the Applicant must have served the minimum employment period set out in s.383 of the Act.
[9] Section 383 is contained in Part 3–2 of the Act. Together with s.382, it defines which employees are protected from unfair dismissal. Sections 382 and 383 are relevantly in the following terms:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
…”
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer – one year ending at that time.”
[10] In this case, the Respondent indicated that it had 800 or more employees at the time that the Applicant was dismissed. 6 Therefore, the minimum employment period that the Applicant had to serve in order to be eligible for an unfair dismissal remedy was six months.
[11] Section 384 of the Act relevantly provides as follows:
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) …
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
Issues to be determined
[12] There are two issues for consideration. Firstly, whether the Applicant was employed directly by the Respondent during the relevant period or not. If the Applicant was not employed directly by the Respondent during the relevant period, then the second issue requiring determination is whether the Applicant was a transferring employee in relation to a transfer of business from McArthur to the Respondent and if so, whether the Respondent informed the Applicant in writing before the new employment commenced that his period of service with McArthur would not be recognised.
[13] In Re Advanced Australian Workplace Solutions Pty Ltd, 7 (AAW Solutions) a Full Bench of the Australian Industrial Relations Commission set out the appropriate course to be adopted when considering a threshold issue such as the Applicant’s primary submission:
“In our view, in such cases, the applicant should go first and adduce evidence directed at establishing that he or she was employed by the respondent. The respondent should then be invited to call evidence on the issue. It will be a matter for the respondent to decide whether or not to call evidence. The respondent may choose to call no evidence and submit that the applicant has failed to establish that the respondent was the employer.” 8
[14] The matter proceeded in accordance with the above course, with the Applicant first presenting evidence directed at establishing that he was employed by the Respondent during the relevant period, before the Respondent’s jurisdictional objection was heard.
Background
[15] The Applicant gave evidence that he applied for an advertised position as Parking Control Officer (Night Crew) through Seek in 2013. The advertisement did not name the Respondent. He received a telephone call from a representative of McArthur, which he understood to be a recruitment company. Jill from McArthur met with him and at the meeting, gave him a contract that said “I would only work for them and not sign up with any other agency.” 9 That contract, or the terms of any written agreement between the Applicant and McArthur, is not in evidence.
[16] The Applicant contends that a week later, Jill from McArthur called to advise him that there was a job at Yarra City Council available and invited him to attend an interview. The Applicant attended an interview with two representatives of the Respondent; Anna Bourne, who he understood to be a Team Leader, and Chris Mulder, who he understood to be an officer of the Respondent. 10
[17] The Applicant said that he was offered the job during the interview by Ms Bourne. He gave evidence that “he expected” that he was working for the Respondent. 11
[18] In the first six months of his employment, the work was ad hoc but eventually the Applicant performed the duties of the Position over five shifts per week. The Applicant said that he wore the Respondent’s uniform and worked on a regular roster prepared by Ms Bourne. Initially, he emailed his hours of work to Ms Bourne, 12 but from early 2017, he emailed them directly to McArthur.13 He was paid by McArthur and McArthur mailed his payslips to his home. The Applicant said that he did not speak to McArthur, except in relation to pay issues.14
[19] It is not in dispute that the Respondent advertised the Position (a permanent part time role) in or about March 2017 and the Applicant applied. The Applicant said that he attended an interview with the Respondent and was offered a role in or about mid-April 2017. 15
[20] Mr Warner gave evidence that the Applicant was advised that his employment application with the Respondent was successful on 9 May 2017. 16 The Respondent provided the Applicant with a letter of appointment which specified that his start date would be 15 May 2017.17 Mr Warner said that prior to this date, the Applicant provided services to the Respondent via McArthur, a labour hire agency.
The Applicant’s primary submission
[21] The Applicant says that he was employed directly by the Respondent in or around March 2013. 18 He says that all of the elements of a contract between he and the Respondent were satisfied and relies on the decision in AAW Solutions which stated, citing Macken’s Law of Employment:
“The law holds that before any simple contract… is enforceable it must be formed so as to contain various elements. These are:
1. There must be an “intention” between the parties to create a legal relationship, the terms of which are enforceable.
2. There must be an offer by one party and its acceptance by the other.
3. The contract must be supported by valuable consideration.
4. The parties must be legally capable of making a contract.
5. The parties must genuinely consent to the terms of the contract.
6. The contract must not be entered into for any purpose which is illegal.” 19
[22] The Applicant contends that the first and second elements were met because Ms Bourne offered the Applicant the Position during an interview conducted in or about March 2013, which he accepted. 20 He says that the contract was supported by valuable consideration because he was paid for his work, albeit indirectly (through McArthur). The Applicant did not make any submissions in respect of the fourth, fifth and sixth elements on the basis that they go without saying.
[23] The Respondent submitted that the first, second and third elements could not be satisfied. It said that the fourth and sixth elements were not in contention and in relation to the fifth element, it said that there is no evidence before the Commission that would enable it to draw a conclusion that the Respondent “genuinely” consented to the terms of any contract. 21
Was the Applicant employed by the Respondent during the relevant period?
[24] Mr Warner gave evidence that the Respondent had, for some time, engaged “ancillary staff through a number of means, whether that be casual, temporary or through agencies.” 22 He said that in or about March 2013, the Respondent did not have sufficient leadership on the night shift and, rather than employ casual or temporary staff directly at a time when the Respondent was reviewing its parking services, it chose to employ agency staff to “fill the gaps.”23 He said that:
“McArthur’s was one of many agencies that we had arrangements with. In Steve’s case, we went through McArthur’s and several other agencies to find suitable employees to backfill our officer requirements. McArthur’s was asked to provide us with a person or people. As it turned out, it was one. Steve was the person who we were given the name of.” 24
[25] When asked if there was any intention on the part of the Respondent to employ the Applicant directly in March 2013, Mr Warner said that at all times the Respondent was of the view that the Applicant was employed by McArthur. To this end, Mr Warner said:
“There was not only no intention, he was not an employee. What occurs is we provide the agencies with our requirements.” 25
[26] He further said that:
“Steve was employed by McArthur’s and McArthur’s provided his services through to us as an agency employee. He undertook work through McArthur’s for Yarra.” 26
[27] Similarly, it was put to the Applicant that there was never any intention on the part of the Respondent to employ him directly in March 2013 and that at all times, he was engaged by McArthur. The Applicant said he disagreed with this and relied upon the fact that his work duties, hours, reporting line, equipment and uniform did not change between the relevant period and from 15 May 2017 onwards. 27
[28] Mr Warner said that he was not aware of a written agreement between the Respondent and McArthur that applied in or around March 2013 for the provision of labour (noting it pre-dated Mr Warner’s employment, which commenced in December 2013). However, Mr Warner said that there was a relationship between the Respondent and McArthur in March 2013, being that McArthur was one of the agencies that the Respondent “would seek to employ contract staff through.” 28He said that the Applicant was employed by McArthur and then “sent on to work for us.”29Mr Warner provided the example of safety incidents that the Applicant had been involved in and said that the Respondent’s health, safety and risk team had contacted McArthur to inform it of the incidents affecting the Applicant.30
[29] The Applicant contends that the Commission should not place any reliance upon the statements made by Mr Warner about what happened in or about March 2013, given that Mr Warner did not commence working for the Respondent until 13 December 2013, nine months later. This issue was put squarely to Mr Warner during cross examination and the following exchange occurred:
“Mr Dircks: You can’t give any first-hand evidence about the arrangements or what was entered into in March 2013 can you?
Mr Warner: Specifically, no, but can I say to you that I was employed by the Chief Executive Officer whom I had a long-term working relationship with. I was fully versed on what she wanted to employ me for and it was specifically to work with the culture. My first job was the parking officers, so I was well aware of the situation there.
Mr Dircks: You can’t give evidence about what actually happened in March 2013, can you?
Mr Warner: I can give evidence that it was consistent with the way we employed agency staff from the time I commenced and at least six months before, because I was given that evidence as part of the requirements for my job.” 31
[30] I accept that in the role of Group Manager People, Culture & Community for the Respondent, that Mr Warner had knowledge of the circumstances in which the Respondent engaged employees, including prior to his commencement. This knowledge was a necessary part of the subsequent restructure that he undertook of the Respondent’s parking services. 32 Mr Warner said that he had been briefed about the perceived overuse of agency staff by the Respondent’s employees in parking services prior to the commencement of his employment33 and said he knew it intimately.34 Notwithstanding this, Mr Warner quite properly conceded when he wasn’t able to answer a question though his direct knowledge.35 Where Mr Warner’s evidence relates to the general circumstances that he understood to be in place at the time he commenced employment with the Respondent in December 2013, I have accepted his evidence, given his senior people management role with the Respondent and noting that these matters are within the scope of his employment.
[31] Mr Warner described the Respondent’s normal processes for employing staff as a “very formal process” 36 and said that none of those processes were engaged in relation to the Applicant in March 2013. In relation to this, the Applicant was asked if there was a written employment agreement entered into between him and the Respondent dating back to March 2013. The Applicant said that he could not recall “anything being written.”37 There is no evidence of any written employment agreement between the Applicant and the Respondent before the Commission.
[32] Mr Warner said that the Applicant “certainly would” have worn a Yarra uniform during the relevant period, “because he was an authorised officer” with the power to book vehicles. Accordingly, the Respondent needed to ensure that he was recognised as the Respondent’s personnel and “it had nothing to do with him being considered an officer of the council.” 38
[33] Mr Warner said that following the commencement of his employment in December 2013, he undertook a restructure of parking services, which affected permanent parking control officer employees of the Respondent. A number of meetings were conducted by Mr Warner during night shift with the parking control officers employed by the Respondent and “the agency staff were never invited to any of those meetings. Steve attended none of them.” 39
[34] On 4 August 2016, the Respondent entered into a services agreement with Comensura Pty Ltd (Comensura) under which Comensura would co-ordinate all orders for the supply of “contingent labour” to the Respondent (Services Agreement). Mr Warner said that the implementation of the Services Agreement did not disturb the Applicant’s placement with the Respondent. The Applicant did not dispute this but said that his hourly rate was reduced to match the common rate revised by Comensura across all agencies. 40 The Applicant said that Susan from McArthur advised him that Comensura had “stated to the agencies that they all had to pay the same rates and so McArthur had to cut my hourly rate to match the common rate.”41
[35] Since the introduction of the Services Agreement, Mr Warner said that the Respondent has continued its practice of engaging employees to perform parking officer duties directly, as well as utilising contingent labour, including from McArthur, to perform the parking control officer work. 42 Mr Warner said that at the date of the hearing, the Respondent had at least four agency workers performing parking control officer work in its parking division.43
[36] The Applicant contends that Ms Bourne offered him the position of Parking Control Officer (Night Crew) during an interview in or about March 2013. The Applicant said that at the interview he attended with Ms Bourne and Mr Mulder, he was informed by Ms Bourne that he had got the job and when he asked who he was working for, Ms Bourne said, “Yarra.” 44
[37] In his closing submissions, the Applicant said that the Local Government Act 1989 (Vic) (LGA) sets out the requirements for the appointment of authorised officers such as Parking Control Officers, and these requirements make it “an impossibility” for the Respondent to “order an anonymous but appropriately qualified person from a labour hire company to fill a position…” because “the potential parking officer must be personally interviewed, photographed, put forward and authorised” before commencing work. 45 The Respondent said that there is nothing in s.224 of the LGA which requires a potential parking control officer to be “personally interviewed” and put forward as a precondition of being appointed an authorised officer. Mr Warner said that under the LGA, one must be authorised, but that person can be a contractor, a temporary employee or “you can be anybody, as long as you’re authorised by the CEO.”46
Objections to evidence
[38] At the hearing, the Respondent objected to various paragraphs of the Applicant’s witness statement (Exhibit A1)from being received into evidence, including the exchange between the Applicant and Ms Bourne summarised at [36] above, on the basis that it was hearsay within the meaning of s.59 of the Evidence Act 1995 (Cth) (Evidence Act). 47 Ms Bourne was not called to give evidence. The evidence was received by the Commission and the parties filed submissions addressing their respective positions as to the weight that should be given to it.48
[39] The Respondent contends that the statements attributed to Ms Bourne should be given little, if any, weight. It says that in any case, Ms Bourne was a Night Shift Officer for the Respondent in March 2013 (not a Team Leader) and did not have the authority to employ the Applicant on behalf of the Respondent. 49 Mr Warner said that Ms Bourne “was more like a leading hand” who “ensured that we always had the appropriate number of staff and ensured that the staff were put in the right places. She did not have any authority to employ directly any officer.”50
[40] Mr Warner was asked why he didn’t adduce any evidence showing that Ms Bourne was not a Team Leader for the Respondent in or about March 2013 but rather a Night Shift Officer. Mr Warner said that there was “no need” for him to, “when her role was nothing more than to ensure that the appropriate number of staff were employed on night shift.” 51Mr Warner later conceded that Ms Bourne also developed the parking control officer rosters and conducted performance development reviews of parking officers and provided this to management, because management did not work night shift.52
[41] The Applicant says that the statements attributed to Ms Bourne are not hearsay but in any case, the evidence should be given its full weight because it is the best evidence before the Commission as to what happened in relation to the Applicant’s engagement in March 2013, the evidence would not be unfairly prejudicial to the Respondent’s interests, and there is no contrary evidence before the Commission.
[42] There is no automatic prohibition in proceedings before the Commission on the reliance on hearsay evidence. The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s.577(a) of the Act. 53 Whilst the Commission is not bound by the rules of evidence, that does not mean that those rules are irrelevant54 and the Commission tends to follow the rules of evidence as a general guide to good procedure.55
[43] What is ultimately required of the Commission is to ensure judicial fairness in the circumstances of this case. 56 I have taken into account that in the absence of Ms Bourne’s statements, there is no evidence before the Commission as to the Applicant’s engagement in or about March 2013. I have weighed this against the fact that there was no method by which the Respondent could test the allegation made by the Applicant that Ms Bourne offered the Applicant employment with the Respondent, because Ms Bourne was not called to give evidence in the proceedings, and there is a question as to the reliability of the evidence given the interview occurred over four and a half years ago. However, the Respondent did not attempt to call any evidence in reply to what is a material fact in issue, despite having been on notice of the Applicant’s assertion well in advance of the hearing. I note in particular, that Mr Mulder, a current employee of the Respondent who is also alleged to have been at the interview, was also not called to give evidence. I do not accept the Respondent’s argument that this is adequately explained because the Commission’s directions required it to file and serve its evidentiary material concerning its jurisdictional objection first.
[44] The evidence is relevant to a material fact in issue. On balance, I am not of the view that the probative value of the evidence is outweighed by any unfair prejudice to the Respondent, given its election not to call evidence in reply. 57 Accordingly, I am satisfied that judicial fairness requires that the statements attributed to Ms Bourne above58 be given weight.
[45] However, on an assessment of the evidence, I am not satisfied that Ms Bourne, in her capacity as Night Shift Officer, had the authority to employ the Applicant on behalf of the Respondent, as alleged by the Applicant. While there is no evidence before the Commission setting out the limits on Ms Bourne’s power, I accept Mr Warner’s evidence, given his role, that this was essentially a “leading hand” position and that an employee at this level did not have the authority to contractually bind the Respondent by employing employees. I do not accept that the opinion rule applies to Mr Warner’s evidence in this respect, as alleged by the Applicant, given Mr Warner’s role, knowledge and experience. 59 In my view, the position here can be distinguished from that considered in Khan v Risk Protection Group,60 advanced by the Applicant, where a verbal offer of employment was made by a senior management employee in the role of Operations Manager, who had the authority to hire employees and in fact employed the applicant in that case.
[46] Further, I am not satisfied that the statements attributed to Ms Bourne go so far as to offer the Applicant a role as an employee of the Respondent, as alleged, or rather to approve the Applicant for engagement as a labour hire employee performing work with the Respondent. The inability to hear Ms Bourne’s evidence on this point tested under cross examination means that I am not satisfied that Ms Bourne intended that her statements had the meaning now attributed to them by the Applicant.
[47] While much of the focus was on the statements attributed to Ms Bourne, the Respondent also contends that the Commission should give limited, or no, weight to various other paragraphs of Exhibit A1 because they are either hearsay, 61 irrelevant,62 or not supported by any evidence63 (although different paragraph numbers were referred to during the course of the hearing and in submissions).64 I am not persuaded that the weight given to this material should be discounted, as I am not satisfied that it is inadmissible under s.59 of the Evidence Act or that it is irrelevant. Accordingly, I have also given weight to the evidence contained in the balance of the Applicant’s witness statement.
Consideration
[48] It was incumbent on the Applicant to adduce evidence directed at establishing that he was employed by the Respondent during the relevant period. In my view, the evidence does not establish this.
[49] There must be an intention between the parties to create a legal relationship. The test is objective, not subjective. 65 The Full Bench in AAW Solutions noted that:
“This point is referred to in several of the cases to which we have referred. In Teen Ranch (above) (p.201):
‘The real question is whether the arrangements between the parties evidenced any intention to enter into legal relations. Such an intention is essential.’
In Denham (above), Romer J said (p.447):
‘…the relationship of master and servant cannot be established except by mutual consent.’” 66
[50] Viewed objectively, I am not satisfied that there was an intention on the part of the Respondent to enter into legal relations with the Applicant in or about March 2013.On the contrary, the Respondent considered the Applicant to be an “agency” worker and I consider this was open to it in the circumstances for the following reasons.
[51] Firstly, while there was no contract in evidence, I accept that the Respondent had a relationship with McArthur in or about March 2013 to supply it with supplementary labour and the Applicant was presented to it as a candidate as part of this arrangement. The Services Agreement, while post-dating the Applicant’s March 2013 engagement, identifies by name the incumbent suppliers of temporary labour to the Respondent as at 4 August 2016 and refers to McArthur. 67 I am satisfied that the execution of the Services Agreement took place against a background, at least inferentially, of prior labour hire arrangements existing between the Respondent and McArthur. This, together with Mr Warner’s evidence, satisfies me that there was such an arrangement between the Respondent and McArthur in or about March 2013.
[52] Secondly, I accept Mr Warner’s evidence that employees of the Respondent are employed through a formal process and provided with a written contract of employment recording the key terms of their relationship, including their remuneration and conditions of employment. This is supported by the material the Respondent provided to the Applicant in May 2017 when it offered him direct employment in the Position. In addition to a letter of offer, this included a requirement that the Applicant provide the Respondent with detailed information through the Respondent’s portal and the conduct of reference checks. It is clear on the evidence, that a similar process was not undertaken by the Respondent in relation to the Applicant in or about March 2013. Even if that process has evolved somewhat between March 2013 and May 2017, the complete lack of material passing between the Respondent and the Applicant in March 2013 and the absence of discussion between them, satisfies me that the Respondent did not hold the requisite intention to enter into a contract with the Applicant.
[53] The second essential element of a contract is that there must be an offer by one party and acceptance by the other. For the reasons given above in respect of the statements attributed to Ms Bourne, the evidence does not establish such an offer being made by the Respondent. Accordingly, I am not satisfied that an offer of employment was made to the Applicant by the Respondent.
[54] The third essential element of a contract is consideration. It is clear that no consideration passed between the Respondent to the Applicant. The Applicant was paid by McArthur. The Applicant contends that McArthur was simply acting as an agent for the Respondent in effecting payments to him 68 and relied upon the decision in Kitchen Design Systems Pty Ltd69 (Kitchen Design) in which a Full Bench found that consideration could exist via a circuitous route. However, there is no evidence that provides any basis for concluding that McArthur acted as the Respondent’s agent, or as an intermediary, in making payments to the Applicant. On the contrary, the material before the Commission indicates that McArthur did not regard itself as simply a payroll provider, but rather considered itself to be the Applicant’s employer. There are two documents before the Commission in which a representative of McArthur describes the Applicant as an employee or as “staff” of McArthur.
[55] The first document was received by the Commission from McArthur in response to an Order requiring a person to produce documents etc to the Fair Work Commission dated 14 November 2017. An email from Mr Matthew Mullins – State Manager VIC/TAS of McArthur to the Commission dated 15 November 2017 relevantly provided:
“I have just checked with our Parking Recruitment team and can confirm that I can’t provide you with Schedule requirements a, b or c as Steve Cokuzovski was working as a temporary employee with McArthur at the City of Yarra and we understand, then started working with the City of Yarra directly.
You’ll appreciate in the temporary working environment, employees start and finish assignments hourly, daily, weekly monthly and yearly hence, the communication on such issues is most commonly over the phone. I understand however that Steve worked on and off at Yarra from the 29/1/2013 to 12/5/2017.
Steve’s hours we’re irregular however his last weekly gross earnings were $149.12.” 70
(emphasis added)
[56] It is clear from the language adopted by Mr Mullins that he regarded the Applicant as an employee of McArthur. The term “employee” is used twice when describing the Applicant’s engagement with McArthur. A distinction is also made between the time that Mr Mullins refers to the Applicant as an employee of McArthur (during which he was placed with the Respondent), as against the time when the Applicant started working with the Respondent directly as an employee.
[57] The second document was tendered by the Applicant during the course of the hearing. It is an email chain between Mr Tony Calderone – Senior Consultant for McArthur and the Applicant, dated 14 November 2017, which relevantly provided:
“As requested your last working week through McArthur was week ending Friday 12th May 2017.
That week your gross an [sic] income of $149.12 with a net income deposited into your nominated bank account of $117.12.
From Monday 15th May 2017 you came off our temporary agency staff payroll and commenced at City of Yarra Council as a council employee on their staff payroll system.” 71
(emphasis added)
[58] It is clear from the language adopted by Mr Calderone in his email that he regarded the Applicant as an employee of McArthur. Mr Calderone notes that the Applicant “came off [McArthur’s] temporary agency staff payroll” on Monday 15 May 2017. Prior to this date, it is apparent that Mr Calderone considered the Applicant to be on McArthur’s staff payroll.
[59] The Applicant forwarded this email to his representative, Mr Dircks, and stated as follows:
“FYI – Just to further clarify I now distinctively remember that I actually spoke with Tony because he called me up to say that he had been contacted by Yarra and was advised that I was starting with them on the 15th.
Subsequently Tony’s exact words were:
We are now terminating your contract with us because you will be starting with Yarra directly.
He then went on to say that should circumstances change then I could resign with them at a later stage. At no time was my agreement on any sort of suspension, it was a clean termination.” 72
(emphasis added)
[60] The Applicant’s recollection of “Tony’s exact words” recognises that there was a contract between the Applicant and McArthur that terminated because the Applicant would be “starting with Yarra directly.”
[61] The Applicant said that there is nothing in the material before the Commission to suggest that McArthur asserts it was the Applicant’s employer. 73 Given the above, I do not accept this submission. In my view, McArthur clearly regarded the Applicant as its own employee during the relevant period and this is apparent in the language used by two senior McArthur representatives. This is a matter to which I have attached weight.
[62] Further, if McArthur were simply a payroll provider, McArthur’s representatives would not have cause to refer to the Applicant as an employee or as “staff,” nor would there be a requirement to terminate the Applicant’s contract.The matter before me can be distinguished from the decision in Kitchen Design. There is no evidence here, as in Kitchen Design, that payments made by McArthur could be seen to be payments made by the Respondent.
[63] Finally, it is not in dispute that there was no written contract between the Applicant and the Respondent dating back to March 2013. In the absence of a written contract, I have considered whether, on the evidence available, other factual matters demonstrate the existence of an employment relationship during the relevant period. 74 In doing so, I have taken into account the following comments of a Full Bench in FP Group Pty Ltd v Tooheys Pty Ltd:
“From a practical point of view, it is necessarily a fundamental feature of any labour hire arrangement that the hirer of the labour is able to exercise a large degree of management control over the performance of the work of the hired workers and is also able to integrate them to a significant degree into its existing work systems. Without this, the arrangement would become unworkable. In our experience, labour hire arrangements almost invariably involve the hirer being able to communicate directly to the hired worker instructions concerning the performance of work without the interposition of the labour hire company. That, without more, cannot operate to render the hirer the employer of the hired worker.” 75
[64] In my view, the evidence concerning the relationship between the Applicant and the Respondent dispels any notion that the Respondent was in fact the employer of the Applicant during the relevant period. I note that:
(a) The Applicant was paid by McArthur and received pay slips from it. The Applicant accepted that McArthur deducted income tax from the amount it paid him and made superannuation contributions on his behalf.
(b) The Applicant received a Group Certificate from McArthur.
(c) The Applicant gave evidence that his hourly rate was adjusted by McArthur (not the Respondent) following the execution of the Services Agreement. By contrast, employees of the Respondent are classified and paid pursuant to the City of Yarra Enterprise Agreement 2013-2017. 76
(d) The Services Agreement, which came into effect after the Applicant’s March 2013 engagement but applied to at least the latter part of his assignment with the Respondent (noting (c) above) makes it clear that labour hire workers supplied by a Supplier (as defined, which includes McArthur) to the Respondent “are not employees of either Comensura or the Client [the Respondent].” 77Further, it contains an express “Non-Employment” clause confirming that “no Contingent Labourer will be or become [sic] an employee of either the Client [the Respondent] or Comensura for any purpose…”78 I do not accept the Applicant’s assertion that the Services Agreement is irrelevant.79
(e) At all relevant times, the Respondent engaged its parking control officers through a mixture of direct employment and through various labour hire companies (including McArthur). I accept Mr Warner’s evidence that the Respondent distinguishes between its employees and its labour hire workers when required. For instance, during the parking restructure, Mr Warner arranged meetings with parking control officer employees of the Respondent. The Applicant did not attend any of these meetings. By his own conduct in this respect, the Applicant did not consider himself in the Respondents employ.
(f) Furthermore, the Applicant did not describe himself, in his application for employment with the Respondent in May 2017, as a current employee of the Respondent. Rather he described himself as a “representative of Yarra City Council,” “employed in this role via recruitment agency” and “employed in this role on a casual basis” (but did not say who he was employed in a casual basis by). 80
(g) While Ms Bourne prepared the Applicant’s rosters, was informed when the Applicant could not work, and received the Applicant’s hours of work by email until early 2017, I accept Mr Warner’s explanation that this occurred for administrative simplicity. In relation to the preparation of rosters, I am satisfied that Ms Bourne’s role as Night Shift Officer meant that she had particular knowledge of the requirements for the performance of night shift by parking control officers (including working two up at night for safety reasons) and this avoided engaging in a circular process with McArthur (and other labour hire companies). The exercise of management control by the Respondent over these matters to facilitate a workable arrangement does not, without more, operate to render the Respondent the employer of the Applicant. I note that the Services Agreement makes it clear that the Respondent is to provide “appropriate and sufficient supervision, direction and control over Contingent Labour, throughout the Assignment, to ensure an appropriate level of health and safety for all Contingent Labourers…” 81
(h) Whilst the Applicant wore the Respondent’s uniform during the relevant period, I accept Mr Warner’s evidence that this was necessary to ensure that parking control officers were identifiable to the public as representatives of the Respondent, including to ensure their safety.
(i) In relation to the fact that the Applicant completed “Yarra” forms when he was involved in a workplace health and safety incident, I am satisfied, on the basis of Mr Warner’s evidence, that the Respondent’s health, safety and risk team informed McArthur of these matters concerning the Applicant (even if the Applicant was unaware of this).
(j) While the Applicant worked a regular roster that did not change before and after 15 May 2017 this, at its highest, shows that the Respondent rostered parking control officers to complete shifts as required (irrespective of their employment profile). I do not consider that this is evidence of an employment relationship with the Respondent during the relevant period.
(k) The fact that the Applicant performed the same working duties and functions, and used the same equipment, as employees directly retained and remunerated by the Respondent during the relevant period is not sufficient to indicate that the Applicant should be relevantly characterised as an employee of the Respondent. As noted by the Federal Court in Wilton v Coal & Allied Operations Pty Ltd, 82 there is “nothing unusual or enigmatic” in the circumstances such those here, “that persons the subject of labour hire might be engaged in working actively alongside or otherwise in association with undisputable employees of the business entity which has engaged contemporaneously other workers by way of labour hire from third parties.”83
[65] The above picture gives no support to the proposition that the Applicant was, in reality, an employee of the Respondent. Given my findings, I have not considered it necessary to consider the remaining elements of a contract.
[66] Further, I do not accept the Applicant’s submission that the requirements of the LGAeffectively prevented the engagement of a labour hire worker by the Respondent. Section 224(1) of the LGAmakes it clear that the Respondent may appoint any person (other than a Councillor) to be an authorised officer. I accept that there is no restriction under the LGA on the appointment of labour hire workers. Further, and in any event, this does not persuade me that the Applicant was an employee of the Respondent during the relevant period.
Conclusion
[67] Taking into account the entire factual matrix, I am not satisfied, on the evidence, that there was an employment relationship between the Applicant and the Respondent during the relevant period. On the contrary, McArthur considered itself to be the employer of the Applicant during the relevant period and, on the material before the Commission, I accept this to be the case. Accordingly, the Applicant’s primary submission must fail.
[68] Finally, although the Applicant admits that he had signed a written agreement with McArthur in or about March 2013, 84 the agreement is not in evidence. The Respondent invited the Commission to draw a Jones v Dunkel85 inference because, in its submission, the Applicant could not explain why it was not produced. However, the Applicant explained that he did not have a copy of the contract.86 In the circumstances, and noting that I am in a position to reliably find facts, draw conclusions from them and determine this threshold issue without drawing the interference sought, I decline to do so.87
The Respondent’s jurisdictional objection
[69] Having determined that no employment relationship existed during the relevant period, the second issue requiring determination is whether the Applicant was a transferring employee in relation to a transfer of business from McArthur to the Respondent; and if so, whether the Respondent informed the Applicant in writing before the new employment commenced, that his period of service with McArthur would not be recognised.
Statutory framework
[70] Section 22(5) of the Act specifies when service with one employer counts as service with another employer. It relevantly provides that:
“When service with one employer counts as service with another employer
(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:
(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and
(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.”
[71] Section 22(7)(b) of the Act provides that there is a transfer of employment for non-associated entities if the employee is a transferring employee in relation to a transfer of business from the first employer (here, McArthur) to the second employer (the Respondent). It relevantly states:
“Meaning of transfer of employment etc.
(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:
…
(b) the following conditions are satisfied:
(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;
(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.”
[72] It is not in dispute that McArthur and the Respondent are not associated entities.
[73] For s.22(7)(b) of the Act to be satisfied, a transfer of business must have occurred. The question to be determined is whether there was a transfer of business from McArthur to the Respondent as non-associated entities. A transfer of business takes its meaning from s.311(1) of the Act, which relevantly provides:
“Meanings of transfer of business, old employer, new employer and transferring work
(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).”
[74] The Applicant contends that there is a connection between McArthur and the Respondent within the meaning of s.311(5) of the Act, which provides:
“New employer ceases to outsource work to old employer
(5) There is a connection between the old employer and the new employer if:
(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and
(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.”
Was there a transfer of business between McArthur and the Respondent?
[75] The Applicant contends that there was a transfer of business. He said that his employment with McArthur terminated on 12 May 2017 88 and he commenced employment with the Respondent on 15 May 2017, thereby satisfying the requirements of s.311(1)(a)-(b) of the Act.
[76] It is not in dispute that the work that the Applicant performed for the Respondent was the same, or substantially the same, as the work that he performed for McArthur during the relevant period, such that s.311(1)(c) of the Act is not in dispute between the parties.
[77] In respect of s.311(d), the Applicant relies upon s.311(5) of the Act in support of his argument that there is a connection between McArthur and the Respondent. He submits that engaging McArthur to provide labour means that the Respondent outsourced that work. He relies upon the decision in Burdziejko v ERGT Australia Pty Ltd 89 (Burdziejko) in support of his argument that the subsequent employment of the Applicant meant that the Respondent had ceased to outsource that work to McArthur, thereby satisfying s.311(5) of the Act.
[78] The Respondent rejects the submission that there has been a transfer of business. It contends that the Applicant has not adduced any material evidencing that his employment with McArthur has terminated (as aside from the Applicant’s assignment with the Respondent as a labour hire worker having terminated). Accordingly, it says that s.311(1)(a) of the Act has not been satisfied.
[79] In respect of s.311(1)(b) of the Act, the Respondent accepts that the Applicant commenced employment with it on 15 May 2017, but does not concede that this was within three months after the termination of his employment with McArthur, given its position concerning s.311(1)(a) of the Act above.
[80] In relation to s.311(1)(d) of the Act, the Respondent says that:
(a) The Respondent continues to use the services of labour hire agencies, including McArthur, to provide labour to it as required and relies upon the evidence given by Mr Warner to this effect. 90
(b) Concurrently, the Respondent continues to employ parking control officers directly and relies upon the evidence given by Mr Warner to this effect. 91
(c) The Applicant independently applied for a vacancy with the Respondent and was not “brought across” from McArthur. The position that the Applicant filled arose as a consequence of a former employee of the Respondent leaving the role.
(d) The facts of this matter can be distinguished from those in Burdziejko. In that case, the Commission found that the new employer (ERGT) “decided that it no longer wanted Hays [the old employer] to perform that work and decided to perform the work in house and employed Ms Burdziejko to do the same work.” 92 This is not a case where the Respondent no longer wanted McArthur to continue to provide labour to it. On the contrary, the Respondent continues to require McArthur to provide labour to perform parking control officer work. Consequently, the Respondent has not ceased to outsource the work to McArthur.
Consideration
[81] Much was made by the Respondent as to whether the Applicant’s employment with McArthur has terminated. I am satisfied, by reference to the evidence of Mr Calderone of McArthur and on the Applicant’s recollection of his subsequent discussion with Mr Calderone, 93 that the Applicant’s last working week as an employee with McArthur concluded on 12 May 2017. The evidence indicates that the Applicant’s employment with McArthur ended when the Applicant’s assignment with the Respondent concluded in order for him to commence direct employment in the Position. Accordingly, I consider that both s.311(1)(a) and (b) of the Act are satisfied.
[82] As noted above, s.311(1)(c) is not in dispute. It remains, therefore, to consider whether there is a connection between McArthur and the Respondent pursuant to s.311(5) of the Act. It was not submitted, and nor do I find, that any of subsections 311(3), 311(4) and 311(6) of the Act apply.
[83] In order for there to be a ceasing of the outsourcing under s.311(5) of the Act, there must first be an outsourcing. This requires consideration as to whether the arrangement by which McArthur provided labour to the Respondent constitutes “outsourcing.”
[84] There is no definition of the word “outsourcing” in the Act. It is evident from the legislation that the phrase is to be broadly interpreted. In Burdziejko, Deputy President Gooley referred to the Macquarie dictionary definition of the word “outsource,” which means “to contract (work) outside the company rather than employ more in-house staff.” 94I was not taken to any Full Bench authorities dealing with this issue.
[85] In my view, before the Respondent can be said to have outsourced the work, the work must first have been performed in-house. Here, the “work” is the parking control officer work. The evidence establishes that the Respondent has, at least since in or about March 2013, employed Parking Control Officers directly to perform this work.
[86] In addition, the Respondent has, at least since in or about March 2013, had arrangements with labour hire companies, including McArthur, to provide it with supplementary labour to perform parking control officer work. The Applicant’s labour was provided to the Respondent by McArthur for this purpose during the relevant period.
[87] In August 2016, the Respondent centralised its arrangements with the various agencies from which it sourced labour, through the execution of the Services Agreement. I am satisfied that since August 2016, the Respondent has continued to obtain supplementary labour from agencies, including McArthur, to perform parking control officer work, as well as employ Parking Control Officers directly.
[88] In deciding that it no longer wished to perform “as much work” of that particular type 95 and engaging a third party to perform the parking control officer work, I am satisfied that the Respondent outsourced the parking control officer work. The focus of the Act is on the transfer of work (and no reference is made to the need to also outsource peripheral activities or part of a business).
[89] However, s.311(5) of the Act requires me to be satisfied that the Respondent has ceased to outsource the parking control officer work to McArthur. I am not satisfied that this has occurred. The arrangements between the Respondent and McArthur for the supply of contingent labour to perform parking control officer work remain on foot and have been, since August 2016, subsumed into the Services Agreement.
[90] Mr Warner gave evidence that the Respondent continues to use contingent labour, including from McArthur through the Services Agreement, to perform the parking control officer work. I accept his evidence. As noted earlier, Mr Warner said that at the date of the hearing of this matter, the Respondent had four labour hire workers performing the work in its parking division. 96 Concurrently, the Respondent continues to perform the parking control officer work in-house through the direct employment of Parking Control Officers.
[91] The mere fact that the Respondent offered the Applicant direct employment in the Position, carrying out work that has continued to be performed in house, does not mean that the Respondent has ceased to outsource the parking control officer work. There continues to be the same scope of outsourcing of the parking control officer work by the Respondent. The outsourcing has continued, unaffected by the direct employment of the Applicant. It is clear on the evidence that it has not ceased.
[92] I accept the Respondent’s submission that the matter before me can be distinguished from the decision in Burdziejko given the different factual circumstances.
[93] Accordingly, I am not satisfied that the direct employment of the Applicant means that the Respondent has “ceased to outsource the work” pursuant to s.311(5) of the Act.
Conclusion
[94] On the basis of the material before me, I find that there is no connection between McArthur and the Respondent as required by s.311(1)(d) of the Act. Accordingly, there was no transfer of business from McArthur to the Respondent and the Applicant was not a transferring employee.
[95] As I am not satisfied that there was a transfer of business, the conditions of s.22(7) and therefore s.22(5) of the Act are not satisfied and the Applicant’s service with McArthur does not count as service with the Respondent.
[96] Given my finding, it is unnecessary for me to consider whether the Respondent informed the Applicant in writing before the new employment commenced that his period of service with McArthur would not be recognised, pursuant to s.384(2)(b) of the Act.
[97] The Applicant was employed by the Respondent on 15 May 2017. His employment was terminated on 25 August 2017. To be protected from unfair dismissal, the Applicant must have completed a period of employment with the Respondent of at least six months at the time of the termination of his employment. The Applicant was employed for three months and 10 days at the time of the dismissal. Therefore, he is not protected from unfair dismissal.
Order
[98] The application is dismissed and an order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
G. Dircks for the applicant.
C. Brehas, solicitor,for the respondent.
Hearing details:
2017.
Melbourne:
November 17.
Final written submissions:
Applicant, 11 December 2017
Respondent, 11 December 2017
1 Dated 19 September 2017.
2 Exhibit R1, Annexure FW-4.
3 Exhibit R1 at [9].
4 Applicant’s outline of submissions dated 2 November 2017 at [2].
5 Ibid at [23].
6 Form F3 – Employer Response to Unfair Dismissal Application dated 19 September 2017 at 1.7.
7 Re Advanced Australian Workplace Solutions Pty Ltd Print S0253 (AIRCFB, Giudice J, McIntyre VP and Redmond C, 25 October 1999).
8 Ibid at [94].
9 Exhibit A1 at [8].
10 Exhibit A1 at [9].
11 Exhibit A1 at [15].
12 Exhibit A1 at [18].
13 Exhibit A1 at [20].
14 Exhibit A1 at [22].
15 Exhibit A1 at [30].
16 Exhibit R1, Annexure FW-3.
17 Exhibit R1, Annexure FW-4.
18 Applicant’s closing submissions – primary argument dated 4 December 2017 at [2].
19 Re Advanced Australian Workplace Solutions Pty Ltd Print S0253 (AIRCFB, Giudice J, McIntyre VP and Redmond C, 25 October 1999) at [49]; citing Macken, O'Grady and Sappideen, Macken’s Law of Employment (4th ed, 1997) at p. 74.
20 Applicant’s closing submissions – primary argument dated 4 December 2017 at [16] and [19].
21 Respondent’s closing submissions – jurisdiction dated 5 December 2017 at [35] and [60].
22 Transcript at PN217.
23 Transcript at PN217.
24 Transcript at PN217.
25 Transcript at PN218.
26 Transcript at PN216.
27 Transcript at PN142.
28 Transcript at PN406.
29 Transcript at PN355.
30 Transcript at PN358.
31 Transcript at PN265-PN266.
32 Transcript at PN339.
33 Transcript at PN271.
34 Transcript at PN339.
35 See, for example, Transcript at PN247.
36 Transcript at PN240.
37 Transcript at PN99.
38 Transcript at PN245.
39 Transcript at PN245.
40 Exhibit A1 at [26]; Transcript PN341 – PN345.
41 Exhibit A1 at [26].
42 Transcript at PN257-PN259.
43 Transcript at PN416.
44 Exhibit A1 at [10]-[12].
45 Applicant’s closing submissions – primary argument dated 4 December 2017 at [25]-[26].
46 Transcript at PN411.
47 Transcript at PN62-PN84.
48 Applicant’s closing submissions – primary argument dated 4 December 2017; Respondent’s closing submissions – jurisdiction dated 5 December 2017; Applicant’s closing submissions in reply dated 11 December 2017; Respondent’s closing submissions in reply dated 11 December 2017.
49 Transcript at PN222 and PN236.
50 Transcript at PN238.
51 Transcript at PN312.
52 Transcript at PN315 and PN318.
53 Pearse v Viva Energy Refining Pty Ltd[2017] FWCFB 4701 at [14].
54 Wong v Taitung Australia Pty Ltd[2017] FWCFB 990 at [31]; Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2004) 143 IR 354 at [48]-[50].
55 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [61]-[62]; Fair Work Act 2009 (Cth) s.591.
56 Enterprise Flexibility Agreements Test Case (1995) Print M0464 per Ross VP, Maher DP and Cox C at p.13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509.
57 Transfield Construction Pty Ltd v The Australian Workers Union and Ors (2002) AIRC Print 924386 at [44].
58 Exhibit A1 at [10]-[12].
59 Section 79 Evidence Act 1995 (Cth).
60 [2017] FWC 740.
61 Exhibit A1 at [14], [17], [19], [23], [24], [25], [26], [30], [33] and [34].
62 Exhibit A1 at [34], [35].
63 Exhibit A1 at [21].
64 Transcript at PN63-PN65 and PN68.
65 Damevski v Giudice & Ors [2003] FCAFC 252 at [95].
66 Re Advanced Australian Workplace Solutions Pty Ltd Print S0253 (AIRCFB, Giudice J, McIntyre VP and Redmond C, 25 October 1999) at [54] and [66].
67 Exhibit R1, Annexure FW-7, Schedule 2 at cl. 1.3 and Appendix A at p.24.
68 Applicant’s outline of submissions dated 2 November 2017 at [17]; Applicant’s closing submissions in reply dated 11 December 2017 at [99] and [107].
69 [2007] AIRCFB (Unreported, Lacy SDP, O’Callaghan SDP, Simmonds C, 13 July 2007).
70 Exhibit R2.
71 Exhibit A2.
72 Exhibit A2.
73 Applicant’s closing submissions – primary argument dated 4 December 2017 at [80].
74 Damevski v Giudice & Ors [2003] FCAFC 252 at [81].
75 [2013] FWCFB 9605 at [29].
76 AE406028.
77 Exhibit R1, Annexure FW-7 at p. 2, clause .11.
78 Exhibit R1, Annexure FW-7 at cl. 18. See also Annexure FW-7, Schedule 6 at cl. 16.
79 Wilton v Coal & Allied Operations Pty Ltd [2007] FCA 725, 161 FCR 300 at 177.
80 Exhibit R1, Annexure FW-2 at p.2-4.
81 Exhibit R1, Annexure FW-7 at cl. 7.1. See also Annexure FW-7, Schedule 6 at cl. 6.4.
82 [2007] FCA 725; (2007)161 FCR 300.
83 Ibid at [179].
84 Transcript at PN100-PN103.
85 (1959) 101 CLR 298.
86 Transcript at PN168.
87 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [88]-[90].
88 Exhibit A2.
89 [2015] FWC 2308.
90 Transcript at PN416.
91 Transcript at PN414.
92 [2015] FWC 2308 at [37].
93 Exhibit A2.
94 [2015] FWC 2308 at [26].
95 Item 1224 of the Fair Work Bill 2008 Explanatory Memorandum.
96 Transcript at PN416.
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