Vinh Khuong Tran v Australian Pharmaceutical Manufacturers Pty Ltd
[2024] FWC 2
•2 JANUARY 2024
| [2024] FWC 2 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Vinh Khuong Tran
v
Australian Pharmaceutical Manufacturers Pty Ltd
(C2023/6446)
| COMMISSIONER PERICA | MELBOURNE, 2 JANUARY 2024 |
Application to deal with contraventions involving dismissal
On 19 October 2023, Mr. Vinh Khuong Tran (the Applicant) filed an application for the Commission to deal with a general protections dispute involving dismissal against Australian Pharmaceutical Manufacturers Pty. Ltd (APM).
In his application the Applicant claimed to have worked for APM from 5 December 2022 until the date of his dismissal on 15 October 2023.
The Applicant claimed APM had taken adverse action against him because he had exercised a workplace right under s 340, that APM had discriminated against him as his employer under s 351, and he was dismissed in order so that APM could engage him as an independent contractor under s 358.
In his application form under the description of the actions which amounted to the reasons for his dismissal, he alleged various incidents where he claimed unfair treatment by his supervisor including:
· being sent home early;
· working hours being reduced relative to others;
· being “bullied” by his supervisor;
· being discriminated against because of his Cambodian nationality.
In subsequent correspondence by e-mail dated 19 November 2023, the Applicant forwarded 13 pay slips and gave a further narrative where he claimed he should have been made a full-time permanent employee because of the superior standard of his work. The Applicant summarised his complaint as follows.
“The main reason for my complaint to (APM), Johnny use supervisory authority to bully me, unfair treatment, discriminatory acts, overbearing behaviour, cause me to lost my job, Christmas is coming, how could I find a job. makes me very angry, involved to my family. I only deal with Johnny, not involved in other teams or other shifts.”
In its Form F8A response, APM made a jurisdictional objection that the Applicant was not dismissed by APM. He was never an employee of APM. He worked at APM as an employee of a labour hire agency known as Labourpower Recruitment Services (Labour Power).
Procedural History
On 20 November 2023, I listed the matter for a case management conference. Following that conference, I issued directions leading up to the hearing of the matter by way of Determinative Conference on 11 December 2023.
The matter was heard in person on 11 December 2023. The Applicant represented himself with the assistance of a Cantonese interpreter. He gave sworn evidence and was cross examined. APM was represented by Mr. Anthony Powter, a Principal Adviser with the Australian Industry Group. Mr. Zaman Haroon, the General Manager of APM, gave sworn evidence and was cross examined by the Applicant.
At the conclusion of that determinative conference, I dismissed the application and notified the parties that I would subsequently publish my reasons. Those reasons follow.
Submissions of the Applicant
In his submissions and sworn evidence, the Applicant insisted he “worked for” APM. He elaborated on his allegations of unfair treatment he had received at the hands of his supervisor and the discrimination he had suffered by reason of his Cambodian background.
The Applicant filed 13 pay slips for the period 9 March 2023 until 19 October 2023, which contained the following:
· The pay slips were on the letter head of “Labour Power”;
· At the top left hand corner, they had the name “Labourpower Recruitment Services of PO Box 322 Matraville 2036”;
· The pay slips stated the Applicant had the position of “General Hand”.
· The column “Client name” contained “Australian Pharmaceutical Manufacturers Pty Ltd”; and
· The base of his pay slip had the following “As a casual employee of Labourpower, your hourly rate includes the applicable casual loading as compensation for any entitlement to paid leave.”
The Applicant also filed a Centrelink Employment Separation Certificate Form which had the following employer details “Labourpower Recruitment Services PO Box 322 Matraville”. The reason given for the separation was “shortage of work”.
Submissions of APM
APM is a manufacturer and packager of therapeutic products that include tablets, hard capsules and powdered products such as nutritional and vitamin supplements.
In its submissions, confirmed in the sworn evidence of Mr. Haroon, APM gave the following evidence on the operation of the business of APM:
“• The Respondent operates in an international market with significant orders received from overseas customers. Orders received can fluctuate depending on client needs and demands. The Respondent currently engage 68 direct employees and utilises labour service providers at times to meet peak production requirements.
· During the months of August, September and October 2023, the Respondent has experienced significant declines in order volumes resulting in the need to reduce the number of casual placement employees, such as the Applicant. This change in circumstances has forced the Respondent to adjust its operations base to ensure resilience and adaptability during this period of transition, this has had an unfortunate impact on the casual labour pool which the Respondent hire through casual agencies such as Labour Power and SideKicker.
Mr. Haroon gave evidence of the relationship between APM and Labour Power:
“• APM’s commercial contract with Labour Power is that of a commercial arrangement nationally between the Respondent’s parent entity, Pact Group, and Labour Power whereby there is a commercial contract to supply labour with a host firm, in this case with the Respondent. This is a national labour hire supply arrangement across the Pact Group entities.
· The arrangements between Australian Pharmaceutical Manufacturers and Labour Power are commercially authentic. Each conducts a business on its own, neither are related entities, and the arrangements are commercially practical. Further, the relationship operated in a manner consistent with the contractual terms between each entity. Attached to this Statement and marked with the letter ‘A’ is a copy of the commercial arrangement as amended.
· The main relationship between Labour Power and APM is that Labour Power is to procure labour on an ‘as needed’ basis and the arrangement expressly identifies that Labour Power and at clause 3 ‘Services’ subclause 3.1 (b) ‘Relationship’ states:
‘the Consultant and its personnel are not (and are not intended to be) employees of or agents of or in a partnership or joint venture with the Client.’”
Mr. Haroon gave evidence of the relationship between APM and the Applicant:
“• The Applicant, Mr. Vinh Khuong Tran, was employed by Labour Power. He is otherwise referred to as a labour hire worker.
· Labour Power is a labour service provider which the Respondent has a service arrangement. Labour Power provide the Respondent with casual placement labour under a services arrangement so as to meet fluctuations in production increase demands from time to time. Labour Power is one of two service agencies of placement labour, the other provided is called Sidekicker.
· As the Applicant is a labour hire worker, he is someone who enters into a work contract with a labour hire agency, in this case Labour Power. The labour hire agency has a commercial contract to supply labour with a host firm, in this case with the Respondent. The worker performs work for the host firm. The host firm pays the labour hire agency, and the labour hire agency then pays the worker. The worker has no contract with the host firm and as a result cannot make a claim they have been dismissed by the host firm.
· The Applicant was never employed by the Respondent and further the Respondent never held out to the Applicant there was potential for direct employment in circumstances where he performed well in the role he was doing with the Respondent.
· The Respondent never misrepresented to the Applicant the nature of their relationship and at all times held out to the Applicant that he was in a labour placement role and was therefore employed by an entity other than the Respondent.”
Mr. Haroon also gave evidence as to the reason why the casual labour provided by Labour Power was reduced around the time the Applicant ceased working at APM:
“• During the months of August, September and October 2023, APM has experienced significant declines in order volumes resulting in the need to reduce the number of casual labour hire employees, such as the Applicant. This change in circumstances has forced APM to adjust its operations base to ensure resilience and adaptability during this period of transition. This has had an unfortunate impact on the casual labour hire pool which we hire through casual agencies such as Labour Power and SideKicker.
· This volume reduction accounted for approximately a 40% drop in tablet doses compared to the previous year's manufacturing performance. One of our key customers therefore currently found themselves in a situation of oversupply and, as a result are waiting for stock levels to normalize before placing additional orders with APM. As a result, APM’s production levels and order intake has declined substantially as has the need for the number of labour hire workers APM needs.
· APM at the start of August 2023, were utilizing 92 casual labour placement operators on site and that was reduced by 15 in September 2023, where 77 casual labour placement operators were on site.
· As at the end October there were 66 casual labour placement operators on site with 11 reduced in that month.
· APM informed Labour Power on Thursday 12th October 2023, that the Applicant’s placement was no longer needed due to the reduction in volumes. There was no other reason, and the Applicant was one of 11 individuals whose placement was not needed and one of 26 casual labour placement workers as of October who no longer were placed at our operations.”
On the basis of these submissions and evidence, APM contended it could not dismiss the Applicant as he was never an employee of APM and therefore “the Applicant has no standing to bring a general protections application under s 365.”
Relevant Law
In order for the Commission to exercise its power to deal with a dispute under s 365, it must find as a jurisdictional fact the Applicant has been dismissed.
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.
Under the table in s 342(1)(a), an employer takes adverse action against an employee if the employer “dismisses the employee”. The meaning of “dismisses” is governed by the definition in s 12 which directs the reader to s 386:[1]
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 (emphasis added)
(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.
(2)However, a person has not been dismissed if:
(a)the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b)the person was an employee:
(i)to whom a training arrangement applied; and
(ii)whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c)the person was demoted in employment but:
(i)the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.
(3)Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
The question then for consideration is whether APM “dismissed” the Applicant such as to found an application under s 365.
Consideration and findings
On the basis of the pay slips, the Separation Certificate and the evidence of the Respondent, there is no reasonable argument the Applicant was anything other than a labour hire worker employed by Labour Power. The Applicant worked as a general hand in the factory of APM as an employee of Labour Power pursuant to a contract between Labour Power and APM as part of the Pact Group. The Separation Certificate filed by the Applicant states that the reason for the dismissal by Labour Power was a “shortage of work”.
I find the Applicant was dismissed by his employer, Labour Power, because of a shortage of work. This shortage was caused by a “significant decline” in product order volumes at APM. The Applicant was one of 11 labour hire workers whose placements at APM were discontinued in October for this reason. To be clear, that does not mean that APM dismissed the Applicant.
The dismissal itself was at the initiative of his employer, Labour Power. As APM was not his employer, it did and could not dismiss him. His employer, Labour Power, is not a Respondent in this proceeding. As APM did not dismiss the Applicant, there is no dismissal on which to found a proceeding under s 365.
For all these reasons, this application is dismissed.
COMMISSIONER
Appearances:
Mr. Vinh Khuong Tran, the Applicant, for himself.
Mr. Anthony Powter on behalf of the Respondent.
Hearing details:
11 December 2023
Melbourne
[1] Coles Supply Chain v Milford [2020] FCAFC 152 at paras [15], [86]
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