Travis Cording v Schneider Electric (Australia) Pty Limited
[2024] FWCFB 462
•17 DECEMBER 2024
| [2024] FWCFB 462 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Travis Cording
v
Schneider Electric (Australia) Pty Limited
(C2024/7508)
| DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT EASTON | MELBOURNE, 17 DECEMBER 2024 |
Appeal against decision [2024] FWC 2714 of Commissioner Tran at Melbourne on 2 October 2024 in matter number C2024/2524 – permission to appeal refused.
First Instance Decision
On 2 October 2024, Commissioner Tran issued a decision in Mr Travis Cording v Schneider Electric (Australia) Pty Limited [2024] FWC 2714 (Decision). The Commissioner upheld a jurisdictional objection to Mr Cording’s general protections application raised by Schneider Electric (Australia) Pty Limited (Schneider) on the basis that Mr Cording was not an employee of Schneider and hence was not “dismissed” by Schneider within the meaning of s.386 of the Fair Work Act 2009 (FW Act). The Commissioner dismissed Mr Cording’s application.
The contentious jurisdictional issue in the case was whether Mr Cording was directly employed by Schneider. The Commissioner concluded that there was no contractual relationship between Mr Cording and Schneider and that Mr Cording was employed by Recruitment Select Pty Ltd (Recruitment Select) pursuant to a labour hire arrangement.
Permission to Appeal
On 22 October 2024, Mr Cording filed a Form F7 notice of appeal pursuant to s.604 of the FW Act in relation to the Decision. The grounds identified in the notice of appeal are:
The Decision is based on incorrect principle and the Commissioner failed to consider relevant considerations when applying the multifactorial test.
(ii)The Commissioner incorrectly interpreted a Worker Assignment Agreement between Mr Cording and Recruitment Select and erred in finding that this document supported a finding that there was an employment relationship between Mr Cording and Recruitment Select.
The Commissioner placed undue weight on the Worker Assignment Agreement and failed to give proper weight to other evidence regarding Mr Cording’s relationship with Schneider.
(iv)The Commissioner failed to afford significant weight to evidence about the extent of control that Schneider exercised over the working arrangements of Mr Cording.
The Commissioner failed to consider the significance of the terms of the Manufacturing and Associated Industries and Occupations Award 2020 (Award) when assessing the relationship between Mr Cording and Schneider.
(vi)The Commissioner erred in assessing the credibility of evidence given by a witness called by Schneider, Ms Angelica Patricia Espita Rodriguez. Mr Cording specifically referred to another person, Harry Doxey, being present when Ms Rodriguez gave evidence, and Ms Rodriguez being permitted to re-answer a question during the hearing.
Mr Cording argues it is in the public interest for permission to appeal to be granted because:
correct legal principles have not been applied in the Decision;
the Decision is disharmonious with High Court precedents regarding the significance of the absence of a written contract to the assessment of whether there was an employment relationship between the parties; and
granting permission will provide greater public confidence in the consistency and correctness of decisions concerning whether there was an employment relationship between the parties.
Mr Cording also filed an outline of submissions dated 11 November 2024. The submissions elaborate on why Mr Cording says the Commissioner did not correctly apply legal principles in determining whether Mr Cording was employed by Schneider. The submissions also provide further details regarding Mr Cording’s grounds of appeal, and whether the public interest is enlivened. We have reviewed the submissions.
The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the FW Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions.
Statutory provisions
Section 604 of the FW Act allows for appeals of decisions by Commission members and states:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made under the Registered Organisations Act by the General Manager (including a delegate of the General Manager);
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400) or for an unfair deactivation or an unfair termination (see section 536MA).
(3) A person may appeal the decision by applying to the FWC.
Authorities
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(1) requires the Commission to grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[1] The public interest is not satisfied simply by the identification of error or a preference for a different result.[2] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[3]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[4] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
The Commissioner identified that Mr Cording’s alleged employment with Schneider had ended before the new s.15AA of the FW Act commenced operation on 26 August 2024.[5] The Commissioner found this meant the relationship had to be determined by having regard to the parties’ legal rights and obligations, rather than the history of the relationship and the manner of its performance.[6] That was the correct approach. Although Mr Cording’s notice of appeal refers to various authorities and suggests the Commissioner did not correctly apply them, Mr Cording’s appeal grounds are essentially directed at alleged errors concerning how the Commissioner assessed the various legal rights and obligations in arriving at the Decision.
As the Commissioner recorded in the Decision, “there is no evidence that there was any contractual relationship”[7] between Mr Cording and Schneider Electric. Nor was there any documentary evidence concerning the commercial arrangements between Schneider and Recruitment Select before her.[8] The Commissioner was left to primarily consider the written terms of a document titled “Worker Assignment Agreement.” The named parties to this document are Mr Cording (defined as the “worker”) and Recruitment Select (defined as “a labour hire organisation” that “facilitated the assignment of the worker with the Host Employer”). The Worker Assignment Agreement refers to the “assignment” of the worker with Schneider as the “Host Employer,” and it provides that Recruitment Select was responsible for paying Mr Cording. It also appears to be clear that it was Recruitment Select that had the power to terminate the relationship with Mr Cording, albeit potentially in consultation with Schneider. The appeal grounds disclose no arguable error in the Commissioner’s assessment of the Worker Assignment Agreement, including her conclusion that this document is consistent with there being an employment relationship between Mr Cording and Recruitment Select.
Mr Cording’s appeal grounds rely heavily on alleged errors in the application of the “multifactorial test” and particularly the degree of control exercised by Schneider over Mr Cording’s day-to-day work. Mr Cording’s reliance on the multifactorial test in the absence of a written contract is misplaced. If there is no contractual relationship at all between Mr Cording and Schneider, then the multifactorial test had no work to do having regard to the High Court’s judgment in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd.[9]
Notwithstanding the Commissioner’s finding that there was no contractual relationship between Mr Cording and Schneider, the Commissioner considered the “totality of the relationship,” which included a third party, being Recruitment Select. Mr Cording’s contentions as to the control exercised by Schneider was of minimal assistance to the Commissioner in determining whether Mr Cording was directly employed by Schneider, or was employed by Recruitment Select to perform work for Schneider on a labour hire basis. Under either scenario, it would be expected that Schneider would control the day-to-day work of Mr Cording. A labour hire employee being predominantly controlled by employees of the host employer is not uncommon. The Commissioner concluded that without more, this evidence did not point to an employment relationship between the parties.[10] Any disagreement about the weight attributed to this matter, where it was otherwise the subject of consideration in the decision, is not a sustainable ground of appeal.
To support his contention that he was an employee of Schneider, Mr Cording referred to being integrated into Schneider’s workforce, being required to use defective tools supplied by Schneider, and working regular hours at Schneider’s direction. Schneider relied on taxation arrangements, induction forms, and superannuation arrangements produced by Recruitment Select to argue that Mr Cording was employed by Recruitment Select. It appears the Commissioner took all these issues into account, finding the latter materials relied upon by Schneider to be “persuasive.”[11] We do not consider an arguable case of error is disclosed in relation to the way the Commissioner approached this material.
Nor do we consider there is an arguable error in relation to the Commissioner not taking account of the terms of the Award. The Award would likely have covered Schneider but not applied to Schneider and its employees given there is an enterprise agreement. The Award would likely cover and apply to Recruitment Select and its employees working for Schneider given clauses 4.4 and 4.5 expand the coverage of the Award to include relevant labour hire businesses. We do not see how these industrial arrangements are material to the determination of whether Mr Cording was an employee of Schneider. The absence of any express reference to the Award in the Decision – notwithstanding the submissions that the Commissioner called for – does not disclose an arguable error.
We are also not persuaded that there is an arguable case of error in relation to the Commissioner’s treatment of Ms Rodriguez’s evidence. The mere presence of Mr Doxey and Ms Rodriguez re-answering a question (in re-examination) is not sufficient to undermine the Commissioner’s assessment of Ms Rodriguez’s evidence.
We are not otherwise persuaded that the balance of matters raised by Mr Cording demonstrate an arguable error. Nor are we satisfied, for the purposes of s.604(2), that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
[2] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[3] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[4] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[5] Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024
[6] Decision at [9], relying on Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; 275 CLR 254
[7] Decision at [11]
[8] Decision at [20]
[9] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165
[10] Decision at [21]
[11] Decision at [22]
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