Tung Fai Choi v ACT Education Solutions (Australia) Pty Ltd

[2016] FWC 7905

[2016] FWC 7905

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tung Fai Choi
v
ACT Education Solutions (Australia) Pty Ltd
(U2016/11503)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 3 NOVEMBER 2016

Application for relief from unfair dismissal – jurisdictional objection – whether applicant was an employee –‘Australian employer’ and ‘Australian-based employee’ – Fair Work Act 2009 (Cth) ss.34, 35 – Fair Work Regulations 2009 (Cth) reg 1.15F – jurisdictional objection upheld – application dismissed.

[1] Mr Tung Fai (Antony) Choi (the applicant) filed an application for an unfair dismissal remedy under the Fair Work Act 2009 (Cth) (the FW Act) on 19 September 2016. In his application he described the respondent as ‘ACT Education Solutions Ltd Trading as Education Provider’. He indicated that the respondent’s Australian Business Number was 31 112 251 233 and gave its address as Suite 1201, Level 12, 275 Alfred Street, North Sydney NSW 2060, Australia.

[2] The respondent indicated that there was no such entity as ‘ACT Education Solutions Ltd Trading as Education Provider’. The correct legal name of the entity with the ABN and address cited by the applicant is ‘ACT Education Solutions (Australia) Pty Ltd’. The applicant subsequently clarified via email to my chambers on 14 October 2016 that ACT Education Solutions (Australia) Pty Ltd is the entity against which he wishes to bring his application for an unfair dismissal remedy. The application has been amended accordingly.

[3] The respondent objected to the application on jurisdictional grounds. It indicated that it had never employed the applicant; rather, he had been employed by the Singapore branch of ACT Education Solutions Limited – an associated company registered in the Hong Kong Special Administrative Region of the People’s Republic of China.

[4] The parties were directed to file written submissions and evidence in relation to the jurisdictional objection. A hearing was held in Sydney on 1 November 2016. The applicant appeared by telephone from Singapore.

[5] At the conclusion of the hearing, I indicated that that I had decided to uphold the respondent’s jurisdictional objection and that the unfair dismissal application would consequently be dismissed, with reasons to be given in writing at a later date. These are those reasons.

Who employed the applicant?

[6] The AES Group comprises ACT Education Solutions, Ltd, a company registered in the Hong Kong Special Administrative Region of the People’s Republic of China (‘AES Hong Kong’) and its subsidiary companies, branch offices and representative offices. These together form ‘the AES Group’, including AES Shanghai and ACT Education Solutions (Australia) Pty Ltd, which are wholly-owned subsidiaries of AES Hong Kong; and the Singapore office of AES Hong Kong (‘AES HK Singapore office’).

[7] On 20 September 2006, Joff Allen (then Group General Manager of the AES Group) provided the applicant with a letter offering him the position of ‘Sales Manager – South East Asia for ACT Education Solutions, Limited (AES)’. The letter said that the applicant would be an employee of the ‘to-be-established Singapore Representative Office of AES Hong Kong’. It indicated that the position would be based in Singapore and would report directly to Mr Allen in Sydney. The letterhead was in the name of ACT Education Solutions, Limited, though the address was for the office where Mr Allen was based in North Sydney.

[8] The applicant signed and dated the letter of offer the same day indicating that he had understood and accepted the terms of his appointment as described in the letter. He was in Singapore at the time he signed the letter of offer.

[9] The applicant commenced employment in Singapore on 30 October 2006. In the following month, the applicant undertook a period of induction and training in Australia at the offices of the respondent. This was the only time that the applicant travelled to Australia as part of his employment.

[10] The applicant remained in employment until he was dismissed by a letter signed by Mr Andrew Todd (the current Group General Manager of the AES Group) on 30 August 2016. The letter was on ACT Education Solutions, Ltd letterhead, though the address was, again, for an office in North Sydney.

[11] The applicant was paid throughout his employment by AES Hong Kong. His duties related to the sales operations of AES Hong Kong in the South East Asian and Taiwan Region (which did not include Australia). Throughout his employment, the applicant reported to the Group General Manager of the AES Group.

[12] The applicant conceded at the hearing that both his letters of engagement and termination were given in the name of AES Hong Kong, that he was not based in the AES Group’s Sydney office and that he had never performed substantive duties in Australia. When it was put to him that his employment therefore had no relevant connection to Australia for the purposes of the unfair dismissal provisions in the FW Act, the applicant’s argument was that he took instructions from and liaised with employees in the AES Group’s Sydney office on a daily basis, and the corporate functions (accounting, etc.), at least for the AES Group’s operations in the South East Asian region, were all performed from Australia. He submitted that he never dealt with employees of any of the entities comprising the AES Group based in Hong Kong, as he said there were none. The applicant drew an analogy between AES Hong Kong and a business originating in the United Kingdom which had its registered head office in Panama, contending that the latter would not properly be described as a ‘Panama company’, and so nor should AES Hong Kong really be considered a Hong Kong company.

[13] On the material before me, I am satisfied that it is AES Hong Kong that employed the applicant, and not the respondent. I accept that the applicant was effectively a ‘one-man band’ in the Singapore branch office and therefore needed to liaise closely with his colleagues in the Sydney office, but this is not relevant to the identity of his employer. It is abundantly clear from the documents in evidence relating to the applicant’s employment that his employment contract was with AES Hong Kong. The fact that it may not have had any employees physically based in Hong Kong (though there was insufficient evidence for me to determine this) does not make it any less his employer.

Can Part 3-2 of the FW Act apply to the applicant’s employment?

[14] Part 3-2 of the FW Act deals with unfair dismissal. Section 380 of the FW Act provides that references to ‘employee’ and ‘employer’ in Part 3-2 of the FW Act are to be taken to mean ‘national system employees’ and ‘national system employers’ respectively. However, s.34 of the FW Act provides:

‘34 Extension of this Act beyond the exclusive economic zone and the continental shelf

[…]

Extensions prescribed by regulations

(3) Without limiting subsection (1), if the regulations prescribe further extensions of this Act, or specified provisions of this Act, in relation to all or part of the area outside the outer limits of the exclusive economic zone and the continental shelf, then this Act, or the specified provisions, extend accordingly to:

(a) any Australian employer; and

(b) any Australian-based employee.

(3A)  For the purposes of extending this Act in accordance with subsection (3):

(a) any reference in a provision of this Act to an employer is taken to include a reference to:

(i) an Australian employer; and

(ii) an employer of an Australian-based employee; and

(b) any reference in a provision of this Act to an employee is taken to include a reference to:

(i) an employee of an Australian employer; and

(ii) an Australian-based employee.’

[15] Regulation 1.15F of the Fair Work Regulations 2009 (Cth) (the FW Regulations) relevantly provides:

‘1.15F Extension of Act beyond the exclusive economic zone and the continental shelf

[…]

(5) For subsection 34(3) of the Act, Part 3-2 of the Act, and the rest of the Act so far as it relates to that Part, are extended to an Australian-based employee in relation to the employee's Australian employer in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf.

Note: Part 3-2 of the Act relates to unfair dismissal.’

[16] Section 35 of the FW Act defines ‘Australian employer’ and ‘Australian-based employee’:

‘35 Meanings of Australian employer and Australian-based employee

(1) An Australian employer is an employer that:

(a) is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(b) is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(c) is the Commonwealth; or

(d) is a Commonwealth authority; or

(e) is a body corporate incorporated in a Territory; or

(f) carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity (whether of a commercial, governmental or other nature), and whose central management and control is in Australia; or

(g) is prescribed by the regulations.

(2) An Australian-based employee is an employee:

(a) whose primary place of work is in Australia; or

(b) who is employed by an Australian employer (whether the employee is
located in Australia or elsewhere); or

(c) who is prescribed by the regulations.

(3) However, paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.’

[17] It follows that for Mr Choi’s application to be within jurisdiction, I must find that AES Hong Kong was an Australian employer and also that he was an Australian-based employee.

[18] On the evidence before me, I cannot find that AES Hong Kong satisfies any of the limbs of the definition of an Australian employer in s.35(1) of the FW Act. It was not in dispute that AES Hong Kong is a private corporation registered in Hong Kong, and thus ss.35(1)(a) through (e) cannot be satisfied. It appears that activities carried on by the AES Group in Australia are carried on by the respondent rather than AES Hong Kong, so s.35(1)(f) is also not satisfied. There are no further definitions of an Australian employer prescribed by the FW Regulations pursuant to s.35(1)(g).

[19] In any case, even if AES Hong Kong were found to be an Australian employer, s.35(3) would operate to exclude the applicant from the definition of ‘Australian-based employee’. Even on his own evidence, the applicant executed his contract of employment in Singapore and his duties were performed wholly outside Australia. He was therefore not an Australian-based employee.

[20] Part 3-2 of the Act therefore does not extend to Mr Choi’s circumstances; his application is beyond jurisdiction.

Conclusion

[21] As the Commission does not have jurisdiction to hear Mr Choi’s application for an unfair dismissal remedy, the application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

T F Choi, the applicant, in person via telephone link.

M Nightingale, solicitor, for ACT Education Solutions Ltd T/A Education Provider.

Hearing details:

Sydney with telephone link to Singapore.

2016.

November 1.

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