Yin Leung v Creative Every Day Pty Ltd
[2019] FWC 6387
•20 SEPTEMBER 2019
| [2019] FWC 3402 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Yin Leung
v
Creative Every Day Pty Ltd
(U2019/256)
COMMISSIONER WILSON | MELBOURNE, 20 SEPTEMBER 2019 |
Application for an unfair dismissal remedy. Application for variation or revocation of earlier decision. Principles discussed and applied. No enlivenment of requisite principles. Exercise of discretion considered and refused. Application refused.
[1] This decision is further to one issued on 3 May 2019 ([2019] FWC 2981), and deals with the matter of an application made by the Respondent, Creative Every Day Pty Ltd that I vary or revoke certain of the findings made by me in the 3 May 2019 decision. The application is pertinent to findings made by me in paragraph [57] of that decision, which is as follows:
“[57] I am satisfied that the work performed by Ms Leung both before and after the change in engaging entity was the same, or substantially the same. I am also satisfied that Rejoice outsourced to Creative Everyday the work that Ms Leung performed once performed for it directly, with it being said that, with reference to Ms Leung’s work, “the work change so much that we changed the employer”. After consideration of these matters I am satisfied that Ms Leung was a transferring employee, subject to a transfer of employment, in relation to a transfer of business between Rejoice and Creative Everyday.” 1 (reference omitted)
[2] The variation or revocation application comes to be made after the avenue of seeking a variation or revocation was floated as a possibility in an appeal decision concerning the same matter, but a different decision at first instance. 2 After dismissing the appeal, and discerning that the appellant may be aggrieved about other matters, the Full Bench commented that other options were available:
“[33] We accept that ‘Creative Every Day’ is aggrieved by the Commissioner’s finding that there had been a transfer of business between ‘Rejoice’ and ‘Creative Every Day’. Mr Chow, on behalf of Creative Every Day, contends that the Appellant was denied a fair hearing in respect of this issue as it was not a party to the proceedings at the time the transfer of business issue was determined. It is submitted that had ‘Creative Every Day’ been afforded a fair hearing it would have adduced evidence to show that work performed by Ms Leung for ‘Rejoice’ and ‘Creative Every Day’ was not ‘the same or substantially the same’ (within the meaning of s.311(1)) and hence there was no transfer of business between the two entities. Mr Chow informed us that ‘Creative Every Day’ has now filed evidence to this effect in relation to the upcoming hearing on 28-30 August 2019.
[34] While we accept that ‘Creative Every Day’ is aggrieved by the Commissioner’s finding, the present appeal is not the means for addressing that grievance as the present appeal is confined to the June 2019 Decision and, in particular, the Commissioner’s decision to amend Ms Leung’s unfair dismissal application to change the name of the respondent. In the circumstances, ‘Creative Every Day’ would appear to have two options.
[35] First, in the proceedings to be heard on 28-30 August 2019 before Commissioner Wilson ‘Creative Every Day’ may invite the Commissioner to reconsider his finding that there had been a transfer of business between ‘Rejoice’ and ‘Creative Every Day’ and his decision that Ms Leung had completed the minimum employment period. Under s.603(1) the Commission may vary or revoke a decision (other than a decision referred to in s.603(3)).
[36] The second option open to ‘Creative Every Day’ would be to file an appeal in respect of the May 2019 Decision. Such an option is not without difficulty, as the appeal would be outside the 21 day period prescribed for the filing of an appeal and an extension of time would have to be sought. A second appeal may also prolong the current proceedings.” (footnote omitted)
[3] The substance of the application made by Creative Every Day is as follows:
“5. The current order seeks a variation of this finding and the conclusion of [60] from a discussion in [58] and [59] based on the findings in [57] .
We believe that by looking at work performed by Ms Leung (as submitted by REJOICE and Creative Every Day Pty Ltd) before and after March 2018 respectively, the finding at [57] should be resolved as
The work performed by Ms Leung before and after the changes in engaging entity was substantially different. Hence there would be no conclusion of a transfer of business between REJOICE and Creative Every Day Pty Ltd in March 2018. Hence Ms Leung was not a transferring employee.
With the finding in [57] varied, the conclusion in [60] will then be changed to
On the basis of the foregoing analysis, I make the findings that at 21 December 2018:
. Ms Leung’s employer at the time was Creative Everyday;
. Ms Leung had not completed a period of employment of at least the minimum
employment period; and
. Ms Leung was not a person protected from unfair dismissal.” 3
[4] Section 603 of the Act provides so far as is relevant:
“Varying and revoking the FWC's decisions
603 (1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).
603 (2) The FWC may vary or revoke a decision under this section:
(a) on its own initiative; or
(b) on application by:
(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations--a person prescribed by the regulations in relation to that kind of decision.”
[5] After noting the public interest in the “finality of litigation”, and that with the power to vary or revoke there “remain very important questions as to whether it should be exercised”, 4 Justice Ross noted in an application pertaining to s.603(1) that:
“[37] It is apparent from its terms and the legislative context that s.603 is intended to be broader than a statutory form of the slip rule. So much is clear from s.602, which is directed at slip rule problems. The question is how broad the power is and in what circumstances should it be exercised?
[38] The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.
[39] As a general proposition applications to vary or revoke a decision should not be used to re-litigate the original case. After a case has been decided against a party, that party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so.”
[6] The Full Court has held that s.603 must be viewed within the context not only of the decisions to be made by the Commission, but also of the way in which those decisions may arise, including because of the parties varying representation arrangements. Such leads to the statutory power being seen as being intended to have a broad, flexible operation:
“33 It is also to be remembered that s 603 is applicable to the whole of the broad range of decisions which may be made by the FWC, other than those specified in s 603(3). Any doubt in this respect is removed by s 598(1) of the FW Act which provides that a reference in Pt 5-1 (which includes ss 602-604) to a “decision” of the FWC includes “any” decision of the FWC however described.
34 This circumstance together with provisions in the FW Act concerning the establishment of the FWC and the discharge of its functions suggest that the power in s 603(1) should not be narrowly confined. The functions of the FWC include “promoting cooperative and productive workplace relations and preventing disputes” (s 576(2)); the FWC is to perform its functions and exercise its powers (including the powers in s 603) in a manner which is fair and just and which is quick, informal and without unnecessary technicality (s 577); in performing its functions and exercising its powers (which would include s 603), the FWC must take into account equity, good conscience and the merits of the matter (s 578(b)), and many of the FWC’s powers may be exercised without it having assistance from legal representatives or paid agents of the parties (s 596(1)). In our view, this is consistent with a statutory intention that s 603 should have a broad flexible operation.” 5
[7] In rejecting the prospect that s.603 of the Act was not available to correct error because such is to be achieved by an appeal under s 604 of the FW Act, the Full Court held:
“In our view, the broad discretionary power conferred on the FWC by s 603(1) is not subject to any implied limitation of the type alleged by the Minister. There may of course be circumstances in which the discretionary power under s 603 properly should not be exercised because the applicant for the order is a person who is aggrieved by the decision and should pursue an appeal under s 604. However, the fact that one can contemplate the existence of a range of potential circumstances in which the discretionary power under s 603 might properly not be exercised does not warrant the implication of arbitrary limits on the power itself: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 283-4 (Wilson J).” 6
[8] Most recently the Full Bench in Jeremy Snyder v Helena College Council, Inc. 7 reviewed the extent of the power in s.603 to vary or revoke a decision as well as how the power may be engaged:
“[58] In approaching the nature of the Commission’s power under s.603 of the Act, we have noted His Honour’s statements in Grabovsky and consider the following principles in relation to s.603 of the Act can be discerned from the recent decision of the Full Court of the Federal Court in Minister for Industrial Relations for the State of Victoria v Esso Australia Pty Ltd (Esso):
a) Section 603 is applicable to the whole of the broad range of decisions which may be made by the Commission, other than those specified in s.603(3) of the Act;
b) This circumstance, together with provisions in the Act concerning the establishment of the Commission and the discharge of its functions, suggests that the power in s.603(1) should not be narrowly confined but should have a broad flexible operation;
c) The Act does contemplate that the Commission should have both the power to vary and revoke pursuant to s.603, and the power to determine matters on appeal pursuant to s.604;
d) There is no discernible basis upon which it could be concluded that the correction of error is solely within the preserve of s.604. On the contrary, it would be inconsistent with the relatively broad powers available under s.603 for the correction of error somehow to be carved out from its purview;
e) The fact that there might be a degree of overlap between s.604 and s.603 so that there might be scope to deploy each to achieve the same practical result does not alter the position;
f) The discretionary power in s.603(1) to vary or revoke a decision is not cast in terms of a power to be exercised only in particular stated events or circumstances and, apart from the decisions that are excluded by s.603(3), the power is not subject to any other express limitations;
g) There may be circumstances in which the discretionary power under s.603 properly should not be exercised because the applicant for the order is a person who is aggrieved by the decision and should pursue an appeal under s.604; and
h) However, the fact that one can contemplate the existence of a range of potential circumstances in which the discretionary power under s.603 might properly not be exercised does not warrant the implication of arbitrary limits on the power itself.”
[9] Engagement with the contentions put forward by Creative Every Day and Rejoice shows that it is contended that the findings at paragraph [57] of the 3 May 2019 decision are erroneous and not founded by the evidence. There are three findings indicated in the paragraph; (1) that the work performed by Ms Leung before and after the change in employing entity was not same or substantially the same; (2) that the work was outsourced from Rejoice to Creative Every Day and (3) as a consequence that Ms Leung was a transferring employee, subject to a transfer of employment.
[10] The core of Mr Chow’s approach on this occasion is to seek a variation of the findings made in the 3 May 2019 decision at paragraph [57], including that Ms Leung was a transferring employee.
[11] Creative Every Day submit that by looking at the work performed by Ms Leung before and after March 2018 respectively, it ought to be found that the work performed by Ms Leung before and after the changes in engaging entity was substantially different, and that as a consequence there can be no conclusion that Ms Leung was a transferring employee. 8
[12] In order to ascertain the basis of the application that I now vary or revoke my earlier findings all concerned were invited to provide through written submissions their perspective about the change in employing entity in March 2018. They were advised that once the material was provided it would be compared with that before the Commission prior to the May decision.
[13] The material before the Commission prior to the original decision included that Ms Leung performed work for both Rejoice and Creative Every Day between the period of 5 December 2011 to 5 March 2018. A table provided by Mr Chow and shown in Attachment A to this decision, indicates his understanding of the identity of Ms Leung’s employer and a summary of the work she undertook at relevant times. 9 The Respondent put forward that on or around 2 March 2018, Rejoice ceased providing Ms Leung work10 after which from 5 March 2018 onwards Ms Leung began working solely for Creative Every Day doing design work on the Sameway magazine publication with a reduced workload.11
[14] Mr Chow put forth in submissions that Ms Leung was “paid by two different companies according to how much of her work came from which parties. There was a period that she was given work from us only. There was also a period that she was not working for the two organizations for personal reasons. In short, her role, time spent on her work at different periods, and type of work changed accordingly with time.” 12
[15] Evidence led by Mr Chow indicated that on 1 July 2012 Creative Every Day became a separate business to that of Rejoice which took control of the running of the Sameway magazine Ms Leung worked on. 13 Immediately after this change Ms Leung continued to be paid for her work on the Sameway magazine by Rejoice, it wasn’t until January 2013 when this changed and Ms Leung began to be paid by Rejoice.14 Mr Chow’s evidence in relation to the two organisations and their separation includes that they are separate, but work cooperatively on certain projects; for example when Sameway and Rejoice host activities together. One is a non-profit organisation working with community groups and the other is a business undertaking publications and promotions.15 They share facilities and do so closely, with Mr Chow giving evidence that:
“They have the same address, but they are in different rooms. The rooms that Ms Leung worked in is dedicated to the magazine, which is leased by Creative Every Day. Rejoice itself is a big place. It hosts radio, we host other companies, working in different entities…” 16
[16] The evidence put forth appeared to indicate that the work Ms Leung undertook while working at Rejoice and Creative Every Day was either labelled as “Art Director”, “Designer”, “Ministry Support” which “included give advice to design work for the ministry partner of Rejoice, Creative Every Day,” 17 “supporting the promotion of Rejoice and related ministries”18 or a combination thereof. The evidence suggested that while Ms Leung worked on the Sameway magazine project significantly throughout her employment at both Rejoice and Creative Every Day that the level of work she undertook on the magazine and any periphery tasks associated with her work including promotion and advertising19 fluctuated as a result of staffing levels at the two organisations at any given time.20 Mr Chow conceded that Ms Leung worked in 2018 for both Rejoice and Creative Every Day in 2018; some of the work of Ms Leung performed was related to Rejoice, “Not because Rejoice is the employer, but because Rejoice pay Sameway to do so.”21
[17] While there is evidence that there was a “break” from working on the Sameway magazine between mid-2017 and March 2018 as a result of some issues with the hours Ms Leung could undertake arising from a period when she was in Hong Kong which affected morale in the team, 22 the evidence shows that her work was still promotional and marketing in nature during this time in the form of advertising and promotion in the Sameway magazine,23 as well as “a lot of advice to the design work for Rejoice”.24 There was no evidence led by either party as to any formal position descriptions or contracts between Ms Leung and either Rejoice or Creative Every Day which outlines the specifics of her position and work or any changes to that work throughout Ms Leung’s employment.
[18] The submissions made by Rejoice and Creative Every Day in response to the most recent directions focus upon and amplify contentions that the work before and after the change in entity cannot be considered to be the same as well as that the conditions under which the work was performed was different. It is argued that Ms Leung’s work with Creative Every Day was to be a contractor and not as an Art Director leading a team; 25 that she took up all design work related to the “Sameway” magazine operated by Creative Every Day and had little connection with Rejoice after March 2018.26
[19] It is now further argued that the projects Ms Leung performed for Rejoice were mostly unrelated to the operation of Creative Every Day; 27 however, that contention is not consistent with the evidence led and relied upon in the 3 May 2019 decision (see [13] – [17] above and [29] below). It is also argued that the supervisory arrangements were different,28 as was the place at which the work was performed.29
[20] The submissions now made assert that before the change in employing entity Ms Leung’s work for Rejoice “related to its own ministry and the role of Ms Leung was a ministry worker committed to support and promotion of REJOICE projects.” During her time at Rejoice, Ms Leung “had no participation in” Creative Every Day’s work 30 and the “work was not outsourced to REJOICE but all performed by Creative Every Day Pty Ltd staff.”31 Creative Every Day submit that at the time of the change in employing entity Rejoice “had practically stopped its ministry development due to a change of strategies and its mission because of the lack of funding”.32
[21] Ms Leung contests those matters arguing that she was a permanent part-time Art Director with Rejoice and Creative Every Day Sameway magazine from 2011 to 2018. 33
[22] The two entities now put forward they have different roles and activities. However, it is to be noted from the material put forward by Rejoice and Creative Every Day in response to the Commission’s August Directions that there is no coherent explanation about the change in employing entity, how it was decided upon, or by whom, or why it had to occur. It is also not submitted that, somehow, incorrect or incomplete evidence managed to be given to the Commission in the proceedings prior to the 3 May 2019 decision.
[23] Creative Every Day now submit that the payments made to Ms Leung across the boundary of the change in employing entity prove the difference in work and function. However, what it has to say on the subject is factually incorrect and simply not consistent with the evidence that was before the Commission and taken into account in the 3 May 2019 decision. Creative Every Day’s submission was that:
“8. Tax returns, payslips and checks (the records had been submitted before) from different banks as REJOICE and CREATIVE are different entities throughout changes together with the varying amount paid reflected the various changes in work of Ms Leung. Before March 2018, Ms Leung was paid by REJOICE for $260 a week while after March 2018, Ms Leung was paid by CREATIVE for $520 a week. This indicated a big change in the work performed by Ms Leung before and after. A transfer of business would not be supported by the amount of work paid.” 34
[24] This paragraph endeavours to create the impression that the payments made to Ms Leung across the boundaries of the change in entity were substantially different, undermining the possibility that there was either transferring work or transferring employment. Creative Every Day desires to give the impression from this submission that the payments to Ms Leung were so radically different (doubling in a fortnight!) that it cannot reasonably be inferred that her transfer in employment from Rejoice to Creative Every Day was the product of common decision making or that the work between the two entities was featured by common elements.
[25] Yet what actually occurred and which is detailed within the 3 May 2019 decision in the Attachment 2 (Payments Table) shown therein is that for a long time from September 2017 through until February 2018 Ms Leung’s fortnightly payments were $520 (noting that there was one fortnight in which she was not paid anything and one where the payment was $260, with both fortnights being immediately before and after Christmas 2017).
[26] The last time Ms Leung was paid $260 by Rejoice was in the pay-period ending 24 December 2017, NOT as Creative Every Day implies, immediately before the change in Ms Leung’s employer.
[27] The last two fortnights in which Ms Leung was paid by Rejoice, in February and early March 2018, her pay was $1,040 per fortnight.
[28] Ms Leung’s employment then transferred to Creative Every Day and thereafter her pay continued to be $1,040 per fortnight (again with a couple of exceptions; there was one fortnight in which Ms Leung was not paid anything and another in which she was paid $5 and $20, with the fortnights being consecutive, from late June and into July 2018).
[29] Evidence before the Commission about the overall relationship between each of the two entities and Ms Leung and how that relationship worked was influential in the findings made in the 3 May 2019 decision. In particular there is the following:
• In relation to the “Sameway” magazine project, formed by Rejoice and later moved to Sameway Every Day:
“MR CHOW: Commissioner Wilson, thank you. I think in my witness statement you will discover that Sameway was developed as a Rejoice project in 2004. That was why the relationship between Sameway and Rejoice - because it originated from Rejoice. The project lasted for a long time and in 2012 the project itself became an independent company. It was at the time that Sameway separated from Rejoice.
It separated in the sense that they have different administrator, management and different purposes on their work, but they co-work in certain community projects like, for example, Sameway and Rejoice host some sort of communitivities (sic) together. They furnish their roles by - one is a non-profit organisation working with community groups, while the other work with business; work with publication, promotion, et cetera. They have joined their two different names working together, all right, on some projects, but they are different.
They have the same address, but they are in different rooms. The rooms that Ms Leung worked in is dedicated to the magazine, which is leased by Creative Every Day. Rejoice itself is a big place. It hosts radio, we host other companies, working in different entities, so - - -” 35
• In relation to the formation of Creative Every Day and how Ms Leung’s employment came to move from Rejoice to Creative Every Day:
“MR CHOW: All right. Thank you. So that is the situation. It's two different companies. Ms Leung had been working with - mainly, all right, started her work with the magazine itself, not with the organisation, but at the time (indistinct) was part of the organisation. At exhibit, I think, R3, there was two pages about the - it's a .pdf about one page on - I think it's published in 2012, the editorial. It was announced that the Rejoice had allowed - or had put the Sameway as an independent company called Creative Plus.
It was announced at the editorial, announced to the public, announced to all the staff, announced to everybody, because there was a decision by Rejoice to let go of the project to become independently run rather than by Rejoice, because it was seen not very appropriate for a Christian organisation to continuously holding a community magazine; a business enterprise. The name was not been accepted and so in the following issues and the following page it was - on the bottom the publisher changed from Rejoice into Creative Every Day because the name Creative Plus was not allowed to be used, so we have to use that.
That was the transitioning and that was a public event because we need to be accountable to all the Chinese people - community that Assembly was no longer a Christian - managed by Christian organisation, but an independent company. There was a separation between Rejoice and Creative Every Day and it was known by everybody because it was properly announced. Since then, all right, there was a period - about a few months because we need time to stop the trade name being owned by Rejoice and then transfer it to Creative Every Day; so it after that finish Ms Leung was paid by Creative Every Day since then. That was the transitioning.” 36
• With reference to the separate status of each entity:
“MR CHOW: Thank you, Commissioner Wilson. I hope I can explain something about what I heard from Ms Leung before I proceed. First, I think - the first thing is the cheque presented by Rejoice is from Westpac Bank. The cheques from Creative Every Day are from Bank of Queensland. They are two different type of cheques from two different banks and with different serial numbers, which you can see. I think that it is very obvious that at different times Ms Leung was paid by different entities from the cheque that she received. That's the first thing I have in the note.
The second thing is about the time period, especially the last two or three years' time, all right? You mentioned 2017, 27 March, which was at the time we were running as a weekly magazine, which is very difficult. I think for the past few years everybody knows that the media changed and running a print magazine is very difficult. It was at that time that Ms Leung was having a holiday in Hong Kong and we could find nobody working for our work - for the publishing work. Ms Leung promised to work from Hong Kong for that, but that didn't happen. That didn't happen, so we had to find someone to work on the design work of the magazine from here; someone who don't know Chinese, which is terrible.” 37
• The above refers to problems arising in mid-2017. Ms Leung was initially a part of the solution, providing assistance for Creative Every Day and the Sameway project:
“MR CHOW: You can see from the cheque that's received later, because after 27 March, all right, we could no longer give the work of the magazine to her because the way that she work - because she was missing from 3.00 to 8.00 in the daytime, which everybody was delayed much. Without her working for that position, everybody finish by 6.00 or 7.00 and that was because of this I told Ms Leung that we could no longer give her the job for the magazine "but we still happy that you work for Rejoice", so that's why her work was reduced by half.
Since that time she was not allowed to work with the magazine and that was reflected in the pages of the - her name was no longer being kept there. On my record, when she returned from April I try to, I would say persuade my other colleagues to give her a chance, so we had asked them to separate for a while, but finally her name was taken off from - a few months later, from 2017. Since then her name did not appear on the magazine any more until March 2018. This is the evidence that she was not been working with the magazine in the period that we mentioned because we try to be accurate in recognising people who work in what capacity.
You can see that from mid-2017 to 5 March 2018, the name of Ms Leung was absent from the magazine …” 38
• By the beginning of 2018, the problems had not been resolved, and Ms Leung’s employment was returned to Creative Every Day; over the period the employer changed and “she was with both projects, the magazine and also some projects we did at Rejoice, but mainly with the magazine”:
“That was reflected in the amount of work she received from us, which is half the workload for a long time, and it was at 5 March that the other members of Sameway had left and also at the time Sameway shifted to be bi-weekly. That is, we no longer publish every week, we publish every two weeks, and it was that we discussed with Ms Leung that she could handle it herself for a publishing for every two weeks. I hope you understand that. If we working on a weekly capacity it was a very hectic team. We need to be running things very fast, but when we started from October 2017, it was - Sameway changed to be bi-weekly. Since then we find that the work was much more easier, much more slow, and we could give more time.
At the time we still had someone working on that, however, these are casual workers. They no longer work for us in the beginning of 2018, so we invited Ms Leung to work - to see whether she can manage all of it by herself and she said she could, and so we resume her work with Sameway from 2018; March onwards. I am trying telling you that it was that period that she change - the work change so much that we changed the employer, because she was - originally before 2017 she was with both projects, the magazine and also some projects we did at Rejoice, but mainly with the magazine. However - - -” 39 (underlining added)
• Ms Leung argued that she did work in 2018 for both Rejoice and Creative Every Day, and Mr Chow conceded that such was the case:
• From Ms Leung’s evidence:
“MS Y LEUNG: Actually last year I'm working in the Sameway Magazine and Rejoice; all the promotion, all the advertising, all of these, I work both of them together. The Sameway Magazine is alternative week to do and Rejoice promotion matter - other stuff - have to be continuous. So both I have to do and start from very beginning I have to do that, too.” 40
“MS Y LEUNG: Yes, I do quite a lot of the Rejoice, Sameway, banner - put up banner and (indistinct) job for all of them, yes. I do all of them for the Rejoice.
THE COMMISSIONER: All right.
MS Y LEUNG: I still got the file in my computer.
THE COMMISSIONER: So you seem to divide that into two things; work you did for the Sameway Magazine and work that you did for Rejoice.
MS Y LEUNG: Definitely, yes.” 41 (underlining added)
• From Mr Chow’s evidence:
“THE COMMISSIONER: Yes. However, that doesn't really address my question. The question was what was done by Rejoice or Sameway in March 2018 to say, "We're no longer paying you under Rejoice. We're going to pay you under Sameway?"
MR CHOW: Because the work changed. You know, before that she could only work for a few projects with Rejoice only, but the projects are not (indistinct) Sameway.
THE COMMISSIONER: All right.
MR CHOW: That's why it was paid under Rejoice. However, after 5 March she took over the whole operation of Creative Every Day and that was why she was paid by Creative Every Day. That is why the work totally change during that period.
THE COMMISSIONER: One of the things that Ms Leung said to me that you would have heard, Mr Chow, is that - I asked her the question of the work she was doing last year and she said that she was doing work in relation to the Sameway Magazine but also preparing promotional material continuously for Rejoice. Would that be the case?
MR CHOW: Yes. As I mentioned, all right, because we need someone to employ - give her work, but the work - there's some work - Sameway worked together with Rejoice. Like, for example, we hold exhibition in Box Hill for some gathering. That was being held, all right, by Sameway together with Rejoice and Rejoice pay Sameway for doing so. That was why the work was being given to her. Every year Rejoice pay the amount of money to - sorry, every year Rejoice pay a certain amount of money to Sameway to take care of their design or promotion work. That been done every year.
There is some transition between Rejoice and Sameway. Say, for example, Rejoice run the community centre. It costs two pages in Sameway as advertising and so Rejoice pay Sameway - pay the company - for the work done by Sameway on the promotion work. That was why there's some work of Ms Leung that is related to Rejoice. Not because Rejoice is the employer, but because Rejoice pay Sameway to do so.” 42 (underlining added)
[30] The grounds now relied upon by Creative Every Day for its application that the 3 May 2019 decision be varied or revoked return to matters that were the subject of evidence from the parties at the time. While returning to the matters dealt with in the May decision, the material then submitted by Creative Every Day, Rejoice and the unsworn witness statements of Ms Chi Chin Chan and Ms Portia Wong Sau Lan, submitted on behalf of the two entities, now attempt to wrench the narrative taken into account by the Commission in an entirely different direction. Instead of mutual cooperation and one entity born out of the project of another, the new narrative is of total difference, with little cooperation and thereby no transfer of work or employment. No explanation has been offered about why different evidence is now being offered.
[31] After reviewing the evidence and submissions before the Commission prior to the 3 May 2019 decision and after considering the settled authorities on matters associated with the variation or revocation of an earlier decision, and having taken into account all material and evidence provided in this matter to date, I am not persuaded that the relevant criteria have been made out by Creative Every Day.
[32] This is not a situation in which there has been a change of circumstance in which it could be demonstrated that the earlier decision is no longer reliable. I am not satisfied that the material before me at the time of the 3 May 2019 decision was incomplete. There is no argument to the effect that the matters relied upon me in the earlier decision were false or fraudulent.
[33] Noting as well that the discretionary power under s.603 is broad and not fettered by the existence of appeal rights, I am unpersuaded that a discretion should be exercised in favour of a variation or revocation.
[34] If Creative Every Day’s application to vary or revoke the 3 May 2019 decision were to be granted, it would be necssary to rehear the evidence, or at least part of it. The shifts in evidence indicated above would have to tested and no doubt further evidential retrofitting may be expected.
[35] This is not a situation in which there is sufficient agreement between the parties for the matter to be determined on the basis of the written and other evidential material already before the Commission, and in any event the need to resolve disputed facts would necessitate the holding of a further hearing (s.397). Having read and reread the material and contests from both sides, much of which lacks any narrative or coherent explanation of what really went on, I seriously doubt that a further evidential hearing would better enable a final and uncontested determination to be made.
[36] Both Mr Chow and Ms Leung are prone to self-serving responses to questions about their situation, which, when viewed as objectively as is possible, are plainly incomplete, and incomplete for a purpose. Neither is an impressive witness, and the evidence of each appears selective on some occasions and embellished on others. They each wish to say to the Commission at some length the things that they think are in their favour, however neither has an affinity to make concessions about matters that would ordinarily be the subject of an agreed position if they have the slightest perception that to do so may not assist their case. At best, a further hearing would simply restate matters already amply and repetitively stated to the Commission.
[37] If I were to grant the application of Creative Every Day it would in essence be to accede to an endeavour by Creative Every Day and Rejoice to relitigate matters that were the subject of the 3 May 2019 decision and the hearing and exchange material process which took place prior to the making of the decision. I have grave reservations in doing so given the shifts that have already taken place in the evidential base relied upon in May.
[38] In considering the material provided at this stage of the proceedings by Creative Every Day and Rejoice I am left with the unavoidable perspective of those two entities wanting to do everything they can to block Ms Leung’s unfair dismissal application. While the making and determination of a jurisdictional objection is their right, each of Creative Every Day and Rejoice have grasped hold of matters of jurisdictional complaint and when the decision went against them sought to again and again further spin the jurisdictional wheel, hoping for a different outcome.
[39] It is unknown whether Creative Every Day has contemplated, or is contemplating, making an application to appeal the 3 May 2019 decision. While the making of an application to appeal that decision may have the problems identified by the Full Bench in the appeal decision published on 9 August 2019 43 (which related to a decision given by me on 21 June 2019 amending the name of the Respondent from Rejoice to Creative Every Day), it must at least be acknowledged that such course is available and has not been actioned. The availability of such right though does not constrain the exercise of the discretion within s.603.
[40] Whether or not Ms Leung’s application for unfair dismissal remedy has any merit is yet to be tested despite having been gestating in the Commission now for over nine months and having been the subject of five written decisions (this is the sixth), none of which has been in the favour of either Creative Every Day or Rejoice. The situation is highly unsatisfactory both given the extended delay the process has created, as well as the amount of resources it has required on the part of the Commission to resolve the subject, each time taking members and staff away from more recently filed and arguably more pressing matters. Variation or revocation of the 3 May 2019 decision, coupled with the need to rehear matters that have already been determined will take further time and resources and will likely still not satisfy Creative Every Day or Rejoice, absent a complete dismissal of Ms Leung’s case. Acceding to Creative Every Day’s most recent application will not further the public’s interest in the finality of litigation.
[41] Those factors count against an exercise of discretion in favour of varying or revoking the 3 May 2019 decision. I decline to exercise the discretion.
[42] As a result, Creative Every Day’s application that I vary or revoke the 3 May 2019 decision is dismissed.
[43] The matter will be returned to the unfair dismissal arbitration list for hearing and determination of the merits at the earliest opportunity.
COMMISSIONER
Appearances:
Yin Fun Leung on her own behalf.
Raymond Chow on behalf of the Respondent.
Hearing details:
2019.
Melbourne:
19 September.
Printed by authority of the Commonwealth Government Printer
<PR708384>
Attachment A
Period | Actual Nature of Work | Actual hours of work | Employer | ||
05/12/11 | Scheduled to be Casual Art Director for Sameway project of REJOICE for 15 hours per week | ||||
05/12/11 – 30/06/12 | Contractor for designing work | less than 10 hours a week in office | REJOICE (for Sameway project) 99 027 261 737 002 | ||
02/07/12 – 14/07/13 | Casual (in contractor mode) Art Director for Sameway of Creative Every Day | less than 10 hours a week in office | Creative Every Day (Sameway) 80 159 857 388 | ||
15/07/13 – 09/02/14 | No work | Nil | NIL | ||
10/02/14 – 15/03/15 | Casual (in contractor mode) Art Director and Designer for Sameway of Creative Every Day | less than 10 hours a week in office | Creative Every Day (Sameway) 80 159 857 388 | ||
16/03/15 – 21/06/15 | Casual (in contractor mode) Art Director and Designer for Sameway of Creative Every Day, and taking up of REJOICE jobs | less than 10 hours a week in office | Creative Every Day (Sameway) 80 159 857 388 | ||
22/06/15 – 26/03/17 | Casual (in contractor mode) Ministry supporter for REJOICE and Art Director and designer for Sameway | less than 10 hours a week in office | REJOICE 99 027 261 737 | ||
26/04/17 – 04/03/18 | Casual (in contractor mode) Ministry supporter for REJOICE | less than 3 hours a week in office | REJOICE 99 027 261 737 | ||
1 The second sentence contains a repeated word and should read “I am also satisfied that Rejoice outsourced to Creative Everyday the work that Ms Leung performed once performed for it directly…”.
2 [2019] FWC 3402, in which the name of the Respondent was changed by me from “Rejoice Chinese Christian Community Centre Inc” to “Creative Every Day Pty Ltd”.
3 Exhibit R7, Creative Every Day, Draft Order, 4 September 2019.
4 Mrs Inna Grabovsky v United Protestant Association. of NSW Ltd[2015] FWC 5161, [35]; with reference to Australian Railways Union v Victorian Railways Commissioners, (1931) 30 CAR 766.
5 Minister for Industrial Relations (Vic) v Esso Australia Pty Ltd [2019] FCAFC 26.
6 Ibid, [74].
7 [2019] FWCFB 3992.
8 Exhibit R7, [5].
9 Form F3 Employer Response, 23 January 2019, item 2.2.
10 Ibid, item 1.2.
11 Ibid, item 2.2, [9].
12 Ibid, item 2.2, [4].
13 Ibid.
14 Ibid.
15 Transcript, 5 April 2019, PN 109.
16 Ibid, PN 110.
17 Form F3 Employer Response, 23 January 2019, item 2.2, [4].
18 Exhibit R2, Witness Statement Raymond Chow, 18 May 2019, [5] – [8].
19 Transcript, 5 April 2019, PN 87, 95.
20 Exhibit A2, Witness Statement Yin Fun Leung, 27 March 2019, [3] – [7]; see also Transcript, 5 April 2019, PN 217 - 219.
21 Transcript, 5 April 2019, PN 267 – 273.
22 Ibid, PN 241 - 266.
23 Ibid, PN 272 - 273.
24 Ibid, PN 282.
25 Exhibit R8, Creative Every Day, Variation or Revocation Submissions, 4 September 2019, [4].
26 Ibid, [5].
27 Exhibit R9, Rejoice, Variation or Revocation Submissions, 4 September 2019, [1].
28 Ibid, [2].
29 Ibid, [1]; Exhibit R8, [6].
30 See also Exhibit R10, Witness Statement of Chi Chin Chan, 4 August 2019, [2]
31 Exhibit R9, [4].
32 Exhibit 8, [7].
33 Yin Fun Leung, Outline of Submissions dealing with Creative Every Day, 11 September 2019; Exhibit A6, Yin Fun Leung, Outline of Submissions dealing with Rejoice, 11 September 2019.
34 Exhibit 8.
35 Transcript, 5 April 2019, PN 108 – 110.
36 Ibid, PN 114 – 116.
37 Ibid, PN 235 – 236.
38 Ibid, PN 240 – 242.
39 Ibid, PN 243 – 244.
40 Ibid, PN 87.
41 Ibid, PN 99 – 103.
42 Ibid, PN 267 – 273.
43 [2019] FWCFB 5416, [36].
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