Fair Work Act 2009
s.394—Unfair dismissal

Shane Organ
v
Boom Logistics Limited
(U2022/4202)

Application for an unfair dismissal remedy - jurisdictional objections - identification of employer – minimum employment period - labour hire arrangement - joint employment - consideration of Chambers; Brien v Broadway Homes Pty Ltd t/a Broadway Homes

[1] On 10 April 2022, Mr Shane Organ (the Applicant) lodged an application for an unfair dismissal remedy having been dismissed. Boom Logistics Limited (the Respondent/Boom) objected to the application on the basis that it was not the Applicant’s employer and even if it was, the Applicant was not protected from unfair dismissal because he had not satisfied the minimum employment period.

[2] Turning to the first objection, the Applicant asserts that while his employment contract makes reference to his employer being Shutdown Staffing Pty Ltd T/A readi (readi), at law the Respondent was his employer. The Applicant further submits that the Respondent has been his employer since 2019.

[3] Section 396 of the Fair Work Act 2009 (Cth) (the Act) provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters, is whether the person was protected from unfair dismissal.

[4] For the reasons that follow, I have dismissed the Applicant’s unfair dismissal application, having found that the Applicant had not satisfied the minimum employment period with his employer, readi. Accordingly, an Order 1 to that effect is issued in conjunction with this decision.

Background

[5] Having not filed a witness statement but with assistance from myself, the Applicant gave oral evidence and was cross examined on his evidence. Notwithstanding the jurisdictional objections raised by the Respondent, the Respondent initially sought to tender into evidence one document and called no witnesses. Both Applicant and Respondent made oral submissions in support of their written materials.

[6] The Applicant gave evidence that he started work with Boom in March 2019 at the Roxby Downs site on an initial shut down. In his own words, the Applicant explained that he was actually quite a green rigger at that time and therefore for a period after that work, he was just finding his feet in the industry.

[7] The Applicant said that in March 2021, he commenced working for Boom at the Boddington mine site in Western Australia. Prior to that, the Applicant describes having worked for Boom for a period of one week a month continuously for approximately 18 months to two years.

[8] Having started at the Boddington site, the Applicant describes working on average somewhere between 48 to 60 hours a week, but quite regularly working up to 84 hours a week.

[9] The Applicant provided a printout of timecards with a date range of 1 February 2019 until 1 April 2022. Those timecards showed that during the period of 25 February 2019 until 20 September 2020 he was assigned to the ‘Organisation’ Boom Logistics SA – Olympic Dam. 2 In the period of March 2019 to early September 2019, there are no records on the timecards of the Applicant working. A similar break occurs between mid-December 2019 and mid-February 2020, then again in April and part of May 2020, and there are other periods - such as in July 2020, where no work is recorded. As of 20 September 2020 there are no entries until March 2021.

[10] Come 1 March 2021, the timecards show that the ‘Organisation’ assigned is ‘Boom Logistics Western Australia …Boddington’, and for the most part, the Applicant is correct insofar as he asserts that he worked each week up until 21 November 2021, with hours in excess of 40 hrs a week save a few limited exceptions. 3 The timecards show no recording of total chargeable hours for the period from 21 November 2021 to 10 January 2022.4

[11] During the hearing, the letter of offer of 18 January 2022 (LOO) that had been tendered by the Respondent, proved contentious. The Applicant asserted that it was not one he had seen before and that the signature purported to be his had been photoshopped onto it. In response, the Respondent sought to introduce into evidence an email sent from the Applicant to Ms Siobhan Fullard, who the Applicant purportedly reported into, attaching the signed LOO. The Applicant thereafter asserted that his email to Ms Fullard was one of a chain and asked that the chain be considered. I allowed both the Respondent and Applicant to tender the emails and provided both the opportunity to consider their contents.

[12] Turning first to the LOO. The LOO was dated 18 January 2022 and the letterhead read ‘readi’. The LOO set out that the offer was for a casual engagement with Shutdown Staffing Pty Ltd (trading as ‘readi’) at the location of Boddington/East Rockingham. The letter set out that there was no advanced commitment to any ongoing work with readi, in addition to the following:

[13] There were further terms included in the LOO but for the purpose of providing context, the aforementioned suffices for now.

[14] The Applicant initially denied having seen the LOO. However, on allowing the Respondent to tender an additional document, namely an email that attached the LOO, the Applicant, having read the email in circumstances where he had also tendered further emails that formed part of the relevant chain, conceded, appropriately in my view, that he had signed the LOO and had sent it back to a Ms Fullard on 19 January 2022.

[15] Before sending the signed LOO, Ms Fullard appears to have emailed the Applicant on 17 January 2022 requesting that he sign the LOO and return it to her as soon as possible. 5 In response the Applicant wrote in respect of his acceptance of employment:

…And as for the acceptance of employment ive signed a dozen of these and still love my job

And after my last awful [sic] expedition from boom I’m not going anywhere 6

[16] In cross examination, the Applicant explained that if one referred to his timesheets, one could see he had taken four weeks off in the intervening period of November 2021 up until early to mid-January 2022 and had tried working for another company. When asked to clarify whether the Applicant had worked for another company between engagements with his employer, the Applicant responded in the affirmative noting that he worked one, three week swing.

[17] The LOO further set out that in respect of ‘Hours of Work’ the following applied:

The Employee acknowledges that:

i. they are not guaranteed any fixed number of hours, or any hours, of work per week; and

ii. an Assignment duration may change with short notice and may be reduced or extended.

The Employee agrees to complete online timesheets accurately indicating the Employee hours/days worked each week.

Timesheets must be submitted in accordance with readi and Client policies to the readi payroll department by 10am each Monday in order to be paid for work completed in the previous week.

Should any bank account details supplied by the Employee be incorrect, the Employee acknowledges that payment of wages may be delayed or lost and that readi is not responsible or liable for any loss resulting in such circumstances. Delayed wages cannot be processed until readi has recovered monies misallocated due to the Employee providing incorrect details.

[18] In respect of ‘Remuneration’, the LOO provided that the terms and conditions of the LOO were set out in the SSPL WA Enterprise Agreement 2021 (Agreement), 7 and its Appendix B. It is apparent from the coverage clause of the Agreement and Appendix B that the Applicant was covered by the Agreement.

[19] Turning to Appendix B, clause 14 of the Agreement (Remuneration) spoke to different types of engagement. Under it, clause 14.4 provided:

At the discretion of the Company, Employees may be engaged on a contract of employment in accordance with the Agreement proper and Appendix A, or in accordance with the Agreement and Appendix B with or without the mobilisation/demobilisation allowance and accommodation provisions, or in accordance with the Agreement and Appendix C.

[20] Appendix A, as referred to in clause 14.4, set out a classification structure inclusive of the classification ‘Advanced/Intermediate Rigger’, Appendix B informed that it applied to employees engaged on a FIFO/DIDO basis and again referred to the classification of ‘Advanced/Intermediate Rigger’, and Appendix C allowed the employer to employ the employee under the terms and conditions of the ‘Mobile Crane Award’ or ‘Mining Industry Award’ with a rate of pay $0.10c greater than the award rates appliable at the time.

[21] Appendix B described that the loaded and casual rate of pay for hour works by employees covered by the appendix, had been consolidated to the exclusion of allowance or payment required by relevant modern awards.

[22] Clause 6 of the Agreement set out that the parties to the Agreement understood that ‘[T]he Company is engaged in the business of on-hiring temporary labour to customers’ and the aim of the Agreement was ‘to establish the industrial arrangements for the labour hire business of the Company’. 8

The minimum employment period

[23] A person is protected from unfair dismissal if they have completed the minimum employment period. 9 Section 383 of the Act sets out the meaning of the minimum employment period as follows:

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.

[24] Section 384 of the Act is concerned with how an employee’s period of employment is calculated for the purpose of determining if the employee has satisfied the minimum employment period. The relevant part reads:

(1) [Meaning of period of employment]

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. (emphasis added)

[25] The starting point is that a period of employment is also referred to as a period of continuous service.

[26] Section 22 defines the terms ‘service’ and ‘continuous service’, the relevant subsections follow:

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) [Exceptions to meaning of service]

The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) [Excluded period does not break continuous service]

An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service…

[27] A period of continuous service can be made up of a series of periods of service. 10 An employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment (period of continuous service) with that employer.11

[28] However, continuous periods of service will only count towards the employee’s period of employment if the requirements in s 384(2)(a)(i) and (ii) are met. Those requirements are, in short, that the employment was on a regular and systematic basis, and during the period of service, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[29] In the decision of Ponce v DJT Staff Management Services Pty Ltd t/as Daly's Traffic (Ponce), 12 it was observed that ‘it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement’.13 It was further explained in Ponce, that it is not necessary to establish that shifts, and start and finish times were regular or rostered, to establish that the employment was on a regular and systematic basis’.14

[30] In Yaraka Holdings Pty Ltd v Giljevic (Yaraka), 15 Madgwick J, concurring with the majority, said, with respect to the phrase ‘regular and systematic’, that a ‘regular… basis’ may be constituted by frequent though unpredictable engagements, and that the term ‘systematic basis’, did not have to involve predictability concerning those engagements or an assurance of work. Regarding ‘systematic basis’, he said that it implied something more than regularity, if regularity were to refer to frequency. The basis of engagement, explained Madgwick J, had to exhibit something that could fairly be called a system, method, or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd edn, 2001).

[31] Later decisions of the Commission, such as those of Chandler v Bed Bath N’ Table Pty Ltd (Chandler), 16 and Greene v Floreat Hotel Pty Ltd,17 have acknowledged that the reasoning in Yaraka has been applied to the concept of casual employment on a ‘regular and systematic basis’ in the Act. In Chandler, the Full Bench set out at paragraph [13]:

…In WorkPac Pty Ltd v Skene, the Federal Court Full Court favoured (without needing to finally adopt) the view that the construction in Yaraka Holdings should be applied to the definition of “long term casual employee” in s 12 of the FW Act (which includes a requirement that the employee has been employed “on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months”). The Commission in its own decisions has consistently applied Yaraka Holdings to s 284(2)(a), including in the Full Bench decisions in Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell and Bronze Hospitality Pty Ltd v Janell Hansson as well as in numerous first instance decisions (citations omitted and reference to 284(2)(a) presumed to be 384(2)(a))

[32] On identifying that the Deputy President in Chandler had adopted an incorrect approach in the consideration of the status of a casual employee, the Full Bench in that same decision expressed:

[I]n Yaraka Holdings Pty Ltd v Giljevic, the Court of Appeal of the ACT gave consideration to the proper construction of s 11 of the Workers Compensation Act 1951 (ACT), which for relevant purposes deemed as workers for the purpose of that Act casual workers if their “engagement, under the contract or similar contracts, has been on a regular and systematic basis” taking into account a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work, and the normal arrangements for someone engaged to perform that type of work. Crispin P and Gray J observed that the concept of employment on a regular and systematic basis was drawn from the Workplace Relations Act 1996, and went on to say (emphasis added):

“[65] It should be noted that it is the "engagement" that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent.

…

[67] Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.

[68] The term "regular" should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for "frequent" or "often". However, equally, it is not used in the section as a synonym for words such as "uniform" or "constant". Considered in the light of the criteria in s11 (3)(a)-(g), we are satisfied that the pattern of engagement over the years from 1995 to 2002 satisfied this description.

[69] Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged.” 18 (bold my emphasis)

[33] Over the period of March 2021 until November 2021, it is apparent that the Applicant worked a repetitive pattern, such that as each week passed, the Applicant had been assigned work and his total hours recorded each week on the timecards exceeded, for the most part, 40 hrs. The engagements were regular in the sense of being frequent, as was demonstrated by the data in the timecard recordings. Although information as to the roster worked, start and finish times and the like was not provided by either party. However, what was observable from the timecards tendered by the Applicant, was that the engagements at Boddington during the period appeared to have culminated into one ‘assignment’.

[34] The Applicant was unable to direct the Commission to an employment contract that covered the period of March 2021 to November 2021, or to any employment contract preceding that time. However, it can be seen from the Agreement, which would presumedly have covered the Applicant from 2 June 2021 (given its date of operation), that ‘Assignment’ as that term was understood in respect of the Agreement, meant the ‘job, task or activity requested by the Customer and also refers to the period during which an employee performs services for a Customer’. Clause 16.1 of the Agreement, provided:

16.1 Employees may be offered Assignments to perform work for a Customer of the Company on a temporary basis. Each Assignment is a separate and distinct period of employment. The Company does not guarantee the duration or length of any Assignment.

16.2 Employees will generally be employed on a casual basis on the understanding that there is no ongoing expectation of continuing employment.

[35] In this sense, the employment can also be characterised as systematic - that is, arranged pursuant to an identifiable system for the reason that the Applicant’s casual employment was subject to defined ‘Assignments’.

[36] Whilst the Applicant’s engagements with his employer culminated in an ‘Assignment’ for the period of March to November 2021, they also culminated into what can be considered contiguous periods of service that counted toward a single period of employment as understood under the Act. That is, during the period between March to November 2021, the Applicant served a period of continuous service with his employer that was either on a DIDO or FIFO basis.

[37] However, it is important to emphasise that the timecards adduced by the Applicant show no recording of total chargeable hours for the period from 21 November 2021 to 10 January 2022. 19 The Applicant has explained that during this period he went to work for another employer, albeit for a purported period of three weeks. On his return to the employer for the purpose of this unfair dismissal application, he was required to sign the LOO, should he wish to be employed – he did so, but it appears that he did reluctantly.

[38] The Applicant gave evidence that it was obvious from the emails tendered that he had no intention of signing the LOO, noting that it had been sent to him multiple times and he had not signed it. The Applicant continued that he had communicated that he was already employed and had signed dozens of ‘these’, presumedly other letters of offer, but the response he said he was provided with, was that if he did not sign the LOO, he would not be paid.

[39] It is apparent from the direct evidence and from the Applicant’s account regarding the chronology of his work history, that the period of 21 November 2021 to 10 January 2022 was not an ‘excluded period’ as that term is understood in s 22 of the Act.

[40] The general meaning of ‘service’ refers to a period during which the employee is employed by the employer. The evidence before me did not suggest that in the period of 21 November 2021 to 10 January 2022, the Applicant remained an employee of the employer notwithstanding the Applicant’s evidence to the contrary. The Applicant was unable to adduce an employment contract prior to the aforementioned intervening period and during that intervening period, on his own evidence, he conceded that he had worked for a company he referred to as Mammoet.

[41] A national system employee’s period of service with her or his national system employer, is a period during which the employee is employed by the employer. For the period between 21 November 2021 to 10 January 2022, I find that the Applicant was not employed by the Respondent or readi. It therefore follows that the Applicant commenced employment with the employer on 14 January 2022.

[42] To be protected from unfair dismissal, it must be established that the Applicant served contiguous periods of service amounting to 6 months preceding dismissal. That requirement was not met given his dismissal came into effect on 23 March 2022. Therefore, the Respondent’s jurisdictional objection on the ground that the Applicant has not met the minimal employment period, is sustained.

[43] In arriving at this conclusion, I have been appreciative that the Applicant considers that he has worked for the Respondent for three years and that he did not feel he was still on probation after three years of employment. The Applicant’s feelings are understandable, but what is required is an application of the law to the indubitable facts as they have been presented in the evidence provided to this Commission.

[44] Whether employed by the Respondent or readi, the Applicant had not satisfied the minimum employment period therefore necessitating the dismissal of his unfair dismissal application. However, for the sake of fulsomeness, I have addressed the Applicant’s argument that notwithstanding his acknowledgment that that he was employed by readi, he was in fact employed by the Respondent via its in-house labour hire company.

The identity of the true employer in the labour hire arrangement

[45] The Applicant argued that his employer for the purpose of his unfair dismissal application was the Respondent. The Respondent contended this was not the case and that at all material times the Applicant had been employed by readi.

[46] It is accepted that the protections afforded by Part 3-2 of the Act are not enlivened unless an employment relationship exists. The protection arises where a person has been ‘dismissed’, the word ‘dismissed’ taking its meaning from s 386 of the Act. The two limbs of s 386(1) – (a) and (b), refer to termination of employment at the employer’s initiative and forced resignation because of conduct or a course of conduct engaged in by the employee’s employer, respectively.

[47] The Respondent relies upon the LOO as evincing that the Applicant was not its employee at any time and the application, to the extent that it is made against it, did not attract the Commission’s jurisdiction and must be dismissed. It is again observed that the Respondent called no witnesses and tendered into evidence only the LOO and an accompanying email.

[48] The Applicant diligently marshalled several documents to show:

a) readi was a wholly owned subsidiary of the Respondent;

b) readi had traded from 9 October 2006 as Boom Logistics (Qld) Pty Ltd; 20

c) timecards were approved by ‘Natasha Mackenzie of Boom Logistics’; 21

d) the invite to sign a document was titled ‘ORGAN Shane – Letter of Offer – Full-Time EBA- Boom WA- ADV Rigger: Signature Request’; 22 and

e) identification cards for the Applicant referred to ‘BOOM LOGISTICS LTD’; 23

[49] The Applicant’s LOO referred to readi as the employer and the Applicant’s payslips referred to the employer as readi (Shutdown Staffing Pty Ltd). Whilst the LOO stated that Applicant reported into Ms Fullard, the Applicant contended that he had never met her or interacted with her, except to correspond about the LOO.

[50] The Applicant further pointed to readi not having its own physical address outside of the Respondent, that the payroll was run completely by the Respondent and that his scheduling was undertaken by the Respondent.

[51] The Applicant added that if it were as simple as creating a second Australian Business Number to completely absolve a company from its workplace responsibilities everyone would be doing it – meaning ‘spinning off their own labour hire companies’ so that there was no protection from unfair dismissal laws.

[52] From the outset it is important to clarify that to the extent that the Applicant pressed that he was jointly employed by the Respondent and readi, the argument must fail. Were the Applicant to have taken action against both Respondent and readi (which he has not done), a substantial jurisdictional hurdle in proceeding against the Respondent would remain given that no concept of joint employment applies in the Australian jurisdiction. As said by a Full Bench of the Commission in FP Group Pty Ltd v Tooheys (Tooheys) 24:

[I]n no case has an Australian court approached the analysis on the basis that the exercise of control over the worker by the hirer of labour in a labour hire arrangement may render the hirer, together with the labour hire company, a joint employer of the worker. 25

[53] In Tooheys, 26 the Full Bench recognised that the starting point for the consideration of labour hire arrangement is that the mere existence of an arrangement under which a first company provides labour to a second company does not point to the second company being the employer of the labour so provided. The Full Bench continued that the general position was stated by Buchanan J in Fair Work Ombudsman v Ramsey Food Processing Pty Ltd,27 as follows:

[60]... arrangements whereby labour is provided by one company to another, without the recipient becoming thereby an employer, are longstanding and unremarkable. There appears no place for an assumption of illegality or illegitimate purpose from the mere fact that a “labour hire” arrangement has been put in place. The Australian cases recognise that, provided the arrangement meets certain objective criteria.

[61] Utilisation in Australia of labourhire arrangements has increased significantly in past decades. There is no doubt that sometimes such arrangements reflect a desire by the proprietors of a business to avoid liability for employment related obligations. That is not illegal as an objective.

[54] The Full Bench in Tooheys at paragraph [20] also had cause to refer to the observation of Merkel J in Damevski v Guidice:

[173] In general, the courts have held that the interposition of a labour hiring agency between its clients and the workers it hires out to them does not result in an employee- employer relationship between the client and the worker: see Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438; Skilled Engineering Pty Ltd v Gill(unreported, Full Court of the South Australian Supreme Court, King CJ, Cox and Bollen JJ, 11 July 1991); McMahon Services Pty Ltd v Cox(2001) 78 SASR 540; Swift Placements Pty Limited v Workcover Authority of New South Wales (Inspector May)[2000] NSWIRComm 9; (2000) 96 IR 69; Drake Personnel Ltd v Commissioner of State Revenue[2000] VSCA 122; [2000] 2 VR 635; Construction Industry Training Board v Labour Force Ltd[1970] 3 All ER 220; McMeechan v Secretary of State for Employment [1996] EWCA Civ 1166; [1997] ICR 549; Montgomery v Johnson Underwood Ltd[2001] EWCA Civ 318; [2001] ICR 819.  28

[55] Importantly, in Tooheys the Full Bench spoke to the formal or ‘paper’ arrangements stating:

[21] The formal or “paper” arrangements here indisputably identified FP Group as the employer of the applicants rather than Tooheys. The applicants were recruited by FP Group, had employment agreements (which included confidentiality and restraint obligations) with FP Group and/or other documents acknowledging FP Group as their employer, were paid by FP Group, had income tax deducted and remitted to the Australian Taxation Office by FP Group, received group certificates and payslips from FP Group, received leave entitlements from FP Group, had superannuation contributions made on their behalf by FP Group, and were treated as FP Group’s employees for workers’ compensation purposes. Clause 9 of the 2002 Agreement provided among other things that nothing in that agreement would be taken as constituting the workers supplied by FP Group as employees of Tooheys. Clause 9 of the 1997 Agreement was to the same effect.

[22] It is correct, as FP Group submitted, that the formal arrangements and the labels used in those arrangements, although always a relevant consideration, will not be determinative if other factual matters demonstrate that those arrangements and labels do not conform to the reality of the working relationships. A critical consideration in determining whether the formal arrangements represent the reality of the situation is what might be described as the commercial authenticity of those arrangements. If the supplier of the labour in the arrangement is not truly conducting a business of its own, and the arrangement lacks “commercial practicality” from the perspective of the labour supplier, then that may indicate that the labour supplier is not truly the employer of the workers it supplies. 29 (citations omitted)

[56] In Wheare v Hi Trans Express (Wheare), 30 the Full Bench considered an unfair dismissal application by a Mr Wheare in circumstances where he asserted, he was employed by Hi Trans Express and Hi Trans Express disagreed, stating it had never employed Mr Wheare but had obtained his services through a labour hire agency. Referring to the decision at first instance, the Full Bench observed that the Deputy President had considered at length whether Mr Wheare was an employee of Hi Trans Express, taking into account the well-established indicia for the determination of an employment relationship.31 The Full Bench concluded that the decision at first instance demonstrated no arguable case of material error warranting permission to appeal.32

[57] Since the decisions of, for example, Tooheys, Wheare, and Spinifex Australia Pty Ltd t/a Spinifex Recruiting v Tait (Spinifex), 33 - where consideration was given to the responsibilities of labour hire employers,34 the High Court has delivered several judgments that have examined the characterisation of the legal relationship whether between an employer and employee,35 or have determined whether the relationship is one of principal and contractor or employer and employee.36

[58] Returning briefly to Spinifex, in that case the Full Bench expressed that the nature of the employment arrangement in a particular case will depend on an examination and analysis of the employee’s employment contract. 37

[59] The eminence of the employment contract clearly gained momentum when the High Court in Rossato definitively opined:

To insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences. That it is no part of the judicial function to reshape or recast a contractual relationship in order to reflect a quasi-legislative judgment as to the just settlement of an industrial dispute has been emphatically the case in Australia at the federal level since the Boilermakers Case.

To insist that nothing less than binding contractual terms are apt to characterise the legal relationship between employer and employee is also necessary in order to avoid the descent into the obscurantism that would accompany acceptance of an invitation to enforce "something more than an expectation" but less than a contractual obligation. It is no part of the judicial function in relation to the construction of contracts to strain language and legal concepts in order to moderate a perceived unfairness resulting from a disparity in bargaining power between the parties so as to adjust their bargain. It has rightly been said that it is not a legitimate role for a court to force upon the words of the parties' bargain "a meaning which they cannot fairly bear [to] substitute for the bargain actually made one which the court believes could better have been made". Even the recognised doctrines of unconscionability or undue influence do not support such a course; and in any event, neither Mr Rossato, nor any of the interveners, sought to suggest that the doctrines of unconscionability or undue influence had any part to play in the resolution of the present dispute. 38

[60] Since Rossato the Full Bench in Chambers;O’Brien v Broadway Homes Pty Ltd t/a Broadway Homes (Chambers), 39 has elucidated the principles concerning the proper approach to be taken to identifying the parties to a contract. In doing so, the Full Bench acknowledged such principles were recently summarised in the Federal Court judgment in Tregidga v Pasma Holdings Pty Limited (Tregidga),40 in the following terms:

“[45] … the identification of the parties to a contract requires an objective assessment of all the relevant surrounding circumstances. That principle was expressed by Allsop P and Handley AJA (Hodgson JA agreeing) in Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; [2009] NSWCA 429 at [28]: The identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract. [46] To similar effect, in Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509; [2012] VSCA 262 (Lederberger) at [19], the Victorian Court of Appeal (Nettle, Redlich JJA and Beach AJA) observed: Identification of the parties to a contract must be in accordance with the objective theory of contract. That is the intention that a reasonable person, with the knowledge of the words and actions of the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude that the parties had. The process of construction requires consideration of not only the text of the documents, but also the surrounding circumstances known to the parties and the purpose and object of the transaction. This, in turn, presupposes knowledge of the genesis of the transaction, the background, and the context in which the parties are operating. (Footnotes omitted) [47] Secondly, at least in respect of a contract that is not wholly in writing (cf BH Australia Constructions Pty Ltd v Kapeller (2019) 100 NSWLR 367; [2019] NSWSC 1086 per Leeming JA), there is intermediate Court of Appeal authority that, in making the abovementioned objective assessment, regard may be had to post-contractual conduct (see Tomko v Palasty [2007] NSWCA 258 at [67]- [68] per Einstein J (Mason P agreeing) and Lederberger at [31]).” 41

[61] The issue before me now is whether the Respondent or readi was the employer of the Applicant.

[62] The Respondent submitted that it had engaged its fully owned subsidiary to provide labour hire workers at various locations including the mining site at Boddington. It noted that readi had a separate Australian Company Number to it, and that it paid fees to readi in respect of the assignment (presumedly the Applicant’s assignment to the Boddington mine site). No evidence was provided in support of this assertion – including a copy of the commercial agreement between readi and the Respondent.

[63] The Respondent observed that the Applicant had filed material that appeared to contain examples of the relationship between the Respondent and readi and how certain resources were shared between the two entities. The Respondent submitted that the point was uncontroversial and that it and readi shared certain resources. No evidence was adduced as to what resources were shared. No response was provided regarding the Applicant’s assertion that the Respondent paid the pay roll tax of readi.

[64] The LOO clearly identified that the offer of employment was extended by readi, and that the client was the Respondent. The LOO further provided several express terms regarding the Applicant’s employment status and engagement. In that respect, it was unequivocally clear that under the LOO readi retained ultimate control over the Applicant’s employment including all matters associated with his conduct and performance while working an ‘Assignment’, and the LOO expressly provided that:

the employment relationship is and remains between the Parties to this Agreement and no employment relationship exists, or shall be created, between you and any Client. 42

[65] It was however adroitly observed by the Applicant that his employment contract with readi, the LOO, had been signed by a Mr Chris Homsey, a gentleman who had purportedly left the Respondent in 2021 but had seemingly signed off on a letter date 18 January 2022. The Respondent explained the circumstance why a former employee, Mr Homsey, had signed the Applicant’s LOO notwithstanding having departed his employment several months prior to the LOO being proffered to the Applicant. The Respondent submitted that whilst Mr Homsey had departed (I am unsure which company), Mr Homsey’s name had been left on the template contracts for issue until such time as they could all be amended.

[66] As observed, the LOO was dated 18 January 2022. The ‘Assignment Start Date’ in the LOO was stated as 14 January 2022 and it is evident from the timecards submitted by the Applicant (which were unchallenged) that he worked 37.5 hours in the period of 10 January 2022 and 16 January 2022. I have already broached that the Applicant stated at hearing to the effect that he was reluctant to sign the LOO. However, the email from the Applicant to Ms Fullard dated 18 January 2022 time stamped 5:15:59 am AWST stated, ‘[A]nd as for the acceptance of employment ive signed a dozen of these and still love my job’.

[67] At this juncture, it warrants observing that it was the Respondent who raised the jurisdictional objection that the Applicant had named the incorrect employer and that the Applicant was not its former employee. Briefly stated, the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove, but the standard of proof never changes. It was the Respondent’s responsibility to establish on the evidence that on the balance of probabilities it was not the Applicant’s employer. Notwithstanding, as observed, to substantiate its objection the Respondent armed itself with scant submissions, a LOO whilst signed by the Applicant was based on a template signed off by a former employee, and an email from the Applicant to a Ms Fullard. This is despite the Applicant placing the Respondent on notice that he considered that the LOO did not represent the actual parties to the employment relationship and at all materials times he was employed by the Respondent. Albeit the Applicant appropriately conceded, in my view, that his employment contract expressly stated that he was employed by readi.

[68] The parties were self-represented and the Commission levels no criticism toward the Applicant regarding the evidence he presented in support of his argument. However, the limited evidence presented has made drawing findings in this matter difficult. It is accepted that the process of construction of the contract so as to identify the parties to it, requires consideration of not only the text of the documents, but also the surrounding circumstances known to the parties and the purpose and object of the transaction. This, in turn, presupposes knowledge of the genesis of the transaction, the background, and the context in which the parties are operating. Limited evidence has been provided in this respect by the Respondent or for that matter the Applicant, notwithstanding his attempts to do so.

[69] The decision of the Full Bench in Chambers refers to judgment in Tregidga, 43 where the Federal Court expressed that the identification of the parties to a contract requires an objective assessment of all the relevant surrounding circumstances.44 Expanding upon that principle, Reeves J, referring to the decision in Air Tahiti Nui Pty Ltd v McKenzie,45 stated:

[T]he identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract. 46

[70] While the Applicant expressed at hearing that he clearly did not favour signing the LOO, which set out that readi was his employer, he did so, noting in his email to Ms Fullard that he had signed ‘dozens’ previously – as noted ‘dozens’ presumedly refers to previous letters of offer. On an objective basis it appears that at the material time, the Applicant intended to contract with readi and had done so on previous occasions. This was evident not only from the Applicant’s oral evidence but also from the timecards which were all presented on readi documentation. It was unclear on the evidence how, on this occasion, the Applicant was informed there was a vacancy or position open with the company. No evidence was provided as to whether it was in response to an advert, whether the Applicant approached the company or was otherwise approached by it.

[71] However, what I am able to conclude is that the Applicant was fully aware that readi was a labour hire company which provided labour to the Respondent, and it was with that labour hire company he entered into an employment contract, which presumedly underpinned the employment relationship with that same entity. It follows that readi was his employer.

[72] The words of the Full Bench in Tooheys however resonate. Tooheys spoke of the critical consideration of whether the formal arrangements represent the reality of the situation and drew upon consideration of the commercial authenticity of those arrangements. The Full Bench in Tooheys cautioned that if the supplier of the labour in the arrangement is not truly conducting a business of its own, and the arrangement lacks ‘commercial practicality’ from the perspective of the labour supplier, then that may indicate that the labour supplier is not truly the employer of the workers it supplies. 47 The decision in Chambers and the aforementioned judgments of the High Court in Rossato,48 CFMMEU v Personnel Contracting Pty Ltd49 and ZG Operations Australia Pty Ltd v Jamsek,50 may not necessarily displace the proposition advanced in Tooheys, but that is not something that warrants further examination here given my conclusion that the minimum employment period had not been satisfied.

DEPUTY PRESIDENT

Appearances:

Mr Shane Organ on behalf of himself;

Mr A. Brooks on behalf of the Respondent.

Hearing details:

Wednesday, 3 August 2022 (telephone hearing)

Printed by authority of the Commonwealth Government Printer

<PR744316>

 1   PR744317.

 2   Digital Hearing Book, 80 – 81.

 3   Ibid 81 - 83.

 4   Ibid 83.

 5   Exhibit A1 Email dated 17 January 2022 time stamped 14:04.

 6   Exhibit A1 Email dated 18 January 2022 time stamped 5:16:59.

 7   [2021] FWCA 3046; AE511631; PR730215.

 8   Ibid cl 6.

 9   Fair Work Act 2009 (Cth) s 382(a).

 10   Wayne Shortland v The Smiths Snackfood Co Ltd (2010) 198 IR 237, [12] (Shortland).

 11   Ibid.

 12   [2010] FWA 2078 (Ponce).

 13  Ibid [70], quoting Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 339, [65] (Yaraka).

 14   Ponce (n 12) [87].

 15   Yaraka (n 13) [89], [91].

 16   [2020] FWCFB 306 (Chandler).

 17   [2020] FWCFB 6019.

 18   Chandler (n 16) [11].

 19   Digital Hearing Book, 83.

 20   Digital Hearing Book, 27.

 21   Digital Hearing Book, 29.

 22   Digital Hearing Book, 53.

 23   Digital Hearing Book, 60.

 24   [2013] FWCFB 9605 (Tooheys).

 25   Ibid, [41]; see also Trakas v PBL Pty Ltd and Trakas v Ready Workforce (A Division of Chandler MacLeod) [2018] FWC 1530, [100] – [118].

 26   Tooheys (n 24) [19].

 27   (2011) 214 IR 306.

 28   (2003) 129 IR 53.

 29   Tooheys (n 24) [21] – [22].

 30   [2021] FWCFB 1413 (Wheare).

 31   Jiang Shen Cai trading as French Accent v Rozario [2011] FWAFB 8307, [30] applying Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Roy Morgan Research Pty Ltd v Commissioner of Taxation [1997] 37 ATR 528; Hollis v Vabu (2001) 207 CLR 21.

 32   Wheare (n 30) [25]-[26].

 33   [2018] FWCFB 6267 (Spinifex).

 34   Ibid [45] – [50].

 35   Workpac Pty Ltd v Rossato & Ors (2021) 309 IR 89 (Rossato).

 36   ZG Operations Australia Pty Ltd v Jamsek (2022] 312 IR 74 (Jamsek); CFMMEU v Personnel Contracting Pty Ltd (2022] 312 IR 1 (Personnel Contracting).

 37   Spinifex (n 33) [50].

 38   Rosatto (n 35) [62]-[63].

 39   [2022] FWCFB 129 (Chambers).

 40   [2021] FCA 721 (Tregidga).

 41   Ibid [45].

 42   Digital Hearing Book, 102.

 43   Tregidga (n 40).

 44   (2009) 77 NSWLR 299; [28]:

 45   Ibid.

 46   Tregidga (n 40) [45], quoting ibid [28].

 47   Tooheys (n 24) [22].

 48   Rosatto (n 35)

 49   Personnel Contracting (n 36).

 50   Jamsek (n 36).