FWCFB 1198
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The attached document replaces the document previously issued with the above code on 22 February 2013.
Paragraph 25 has been deleted and a new paragraph 25 inserted.
Associate to Senior Deputy President Hamberger
Dated: 22 February 2013
 FWCFB 1198
FAIR WORK COMMISSION
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT DRAKE
SYDNEY 22 FEBRUARY, 2013
Appeal against decision  FWA 6806 of Commissioner Cambridge at Sydney on 10 August 2012 in matter number U2012/15092.
 This is an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act), by John Lucas Hotel Management Pty Ltd (trading as World Square Pub) (the appellant) against a decision by Commissioner Cambridge given at Sydney on 10 August 2012 1. In his decision, the Commissioner found that there was an arrangement between Ms Hillie’s (the respondent’s) previous employer and the appellant, such that Ms Hillie was a person who was a transferring employee in relation to a transfer of business (within the meaning of s.384 of the Act.) The effect of this finding was that the respondent’s period of service with her previous employer would count towards her period of employment with the appellant, thereby rendering her a person protected from unfair dismissal.
 A hearing was conducted in Sydney (with a video link to Melbourne) on 23 October 2012. The appellant was represented by Mr Cross, of counsel. Ms Hillie had only just obtained representation and her solicitor, Ms Lloyd, was unable to attend the hearing. It was agreed that the appellant would be heard on its submission at the hearing and the transcript then forwarded to Ms Lloyd. Ms Lloyd filed written submissions on behalf of the respondent on 26 November 2012. Mr Cross filed written submissions in reply on 29 November 2012.
The relevant legislation
 Section 400 of the Act governs appeals arising from matters involving applications for unfair dismissal remedies, as follows:
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.’
 As stated in Transport Workers Union of Australia v Linfox Australia Pty Ltd 2:
‘An appeal under s.604 of the Act may only be pursued with the permission of FWA. This would normally require an appellant to demonstrate an arguable case of appealable error and refer to other considerations which would justify the granting of permission to appeal. Subsection 604(2) requires FWA to grant permission to appeal if it is satisfied that it is in the public interest to do so. Where permission to appeal is granted, the appeal proceeds by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission’.
 Section 382 of the Act provides that a person is protected from unfair dismissal at a time, if at that time the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period. Where the employer is a small-business employer (as in this case) the relevant minimum employment period is 12 months. Section 384 further provides that:
‘(1) 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.
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer a regular and systematic basis; and
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.’
 Section 311 defines when a “transfer of business” occurs.
Meanings of transfer of business, old employer, new employer and transferring work
(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).
Meaning of transferring employee
(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.
Transfer of assets from old employer to new employer
(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:
(a) the old employer or an associated entity of the old employer; and
(b) the new employer or an associated entity of the new employer;
the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and
(d) that relate to, or are used in connection with, the transferring work.
Old employer outsources work to new employer
(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.
New employer ceases to outsource work to old employer
(5) There is a connection between the old employer and the new employer if:
(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and
(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.
New employer is associated entity of old employer
(6)There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.’
The Commissioner's decision
 The relevant factual background was summarised by the Commissioner in his decision thus:
‘ In July 2009, the applicant commenced work at the World Square Pub, (the hotel) which was managed and operated by a company called Wanslea Grove Pty Ltd (ABN: 007082546) (Wanslea Grove) or (the old employer). The applicant worked for Wanslea Grove in what was described as a casual position. The applicant’s casual employment at the hotel with Wanslea Grove was on a regular and systematic basis.
 The owners of the hotel are Brookfield WS Retail Landowner Pty Ltd (ACN: 109033794) and AWPF Management No.2 Pty Limited (ACN: 135365365) who together are referred to as the owners. In July 2011 a representative of the owners made contact with Mr Lucas, the employer. The owners informed Mr Lucas that the tenant of the hotel (Wanslea Grove) was in financial difficulty and may be evicted from the premises. The owners asked Mr Lucas if he would be prepared to run the hotel in the event that Wanslea Grove was evicted. Mr Lucas expressed an interest in managing the hotel on behalf of the owners.
 On 23 August 2011 a meeting was held between the owners, Wanslea Grove and the employer, Mr Lucas. At this meeting Wanslea Grove announced that it could no longer pay the rent for the hotel and it would vacate the premises on the following Monday, 29 August 2011. The owners accepted these circumstances and the employer asked Wanslea Grove to provide them with information including: a list of utility and inventory suppliers, a list of employees, and poker machine taxation information.
 On 25 August 2011, Wanslea Grove provided the employer with the information which had been requested at the meeting held on 23 August. The information included a list of the names and details of 7 employees one of whom was the applicant.
 On Friday 26 August 2011, Wanslea Grove abandoned the hotel. The “hand over” of the hotel from Wanslea Grove to the employer which had been planned for Monday 29 August, did not take place. Instead Mr Lucas had to contact the owners in order to obtain a key for entry to the hotel premises. The hotel did not open for operation on the weekend of 27 and 28 August, but it resumed partial operation in respect to the gaming facility on Monday 29 August.
 The applicant attended at the hotel on Monday 29 August and was employed by Mr Lucas, the employer, performing essentially the same work that she had undertaken in the previous weeks and months for Wanslea Grove. The applicant was not given any notification either verbally or in writing, that her previous period of employment with Wanslea Grove would not be recognised for any employment related purposes.’
 The Commissioner found that:
‘ On Friday 26 August 2011, Wanslea Grove abandoned the hotel and as a consequence the employment of the applicant, and others, was terminated. On and from Monday 29 August 2011, until the applicant's dismissal on or around 16 December 2011, the applicant was a casual employee engaged on a regular and systematic basis with the employer and she had a reasonable expectation of continuing employment with the employer.
 Consequently the evidence has established that the nature of the applicant's employment with both Wanslea Grove and then subsequently with the employer, satisfied the provisions of subsection 384 (2) (a) of the Act.’
 After citing the relevant legislation, the Commissioner stated:
‘ In addressing the requirements of subsection 311 (1) of the Act the matters contained in paragraphs (a) to (d) therein must be satisfied in order to establish that there was a transfer of business. The facts in this case involved, (a) the termination of the applicant’s employment with Wanslea Grove and, (b) the commencement of employment with the employer within three months of the termination, and (c) the work the applicant performed for the employer was the same or substantially the same as that performed for Wanslea Grove.
 In order to satisfy paragraph (d) of subsection 311 (1) of the Act, the evidence would need to establish that there is a connection between the old employer and the new employer as described in any of subsections (3) to (6). In this instance the contest has been reduced to whether or not the terms of subsection (3) can be satisfied in respect to the transfer of assets from the old employer to the new employer.
 Further refinement of the objection taken by the employer established that the new employer owned and obtained the beneficial use of some of the assets (tangible and intangible) that the old employer owned or had the beneficial use of, and these assets relate to and were used in connection with the transferring work.
 The remaining issue of contest has narrowed to the question of whether the transfer of assets was in accordance with an arrangement between the old and new employers. Thus the determination of the jurisdictional objection turns upon what constitutes an arrangement for the purposes of a transfer of assets as contemplated by subsection 311 (3) of the Act.
 This question was helpfully considered in some detail by Commissioner Bissett in the Zabrdac Decision which was referred to by the employer. In Zabrdac, Commissioner Bissett relevantly examined the Explanatory Memorandum to the Fair Work Bill 2009, the Macquarie Dictionary definition of “arrangement”, and numerous instances involving judicial consideration of the word “arrangement”, noting that most decided cases were made in the areas of trade practice and taxation.
 Commissioner Bissett then summarised her approach in the following paragraphs of Zabrdac:
“ These decisions provide authority for the proposition that an arrangement, whilst not necessarily legally enforceable, requires:
 An arrangement is not an expectation that the party will behave in a particular way and it cannot be contrived. It requires some substance.”
 I respectfully agree with the approach adopted by Commissioner Bissett. In addition, I believe that it is also relevant to have cognisance of the statutory context of the provisions of subsection 311 (3) as part of any consideration of whether the transfer of assets from an old employer to a new employer occurred in accordance with an “arrangement” between the two entities. I believe that the statutory context would provide for a broad interpretation to be given to the word “arrangement” as it appears in subsection 311 (3) of the Act.
 In my view it is important to recognise that the protection from unfair dismissal provisions of the Act are beneficial legislation and the minimum employment period establishes a qualification for access to the beneficial legislation. Subsection 384 (2) of the Act is clearly intended to ensure that casual employees who work on a regular and systematic basis and who are transferred to employment with a new employer are not denied access to the beneficial legislation unless the new employer informs them in writing that their period of service with the old employer would not be recognised.
 Employees may often have little knowledge of the details that might surround any transfer of business. The experience for an employee such as the applicant in this case, is that on the next regular day of employment she arrived at work to discover a different employer. Exactly how the change in employment came about may never be properly explained and in the absence of the provision of information to the contrary the employee would be entitled to believe that all her employment related entitlements had been carried over from the old employer.
 Even in circumstances which unquestionably involve a transferring employee in relation to a transfer of business, subsection 384(2) (b) (iii) provides the new employer with the capacity to ensure that the period of service with the old employer would not be recognised. Consequently the legislative emphasis is upon the provision of information to the employee who, as a consequence of the change in employment, loses access to the beneficial legislation. In circumstances where the new employer fails to provide information it would seem that the term “arrangement” should be given a sufficiently broad meaning so that an employee should not easily lose access to the beneficial legislation.
 In the statutory context to which I have referred I now turn to the three elements identified in the Zabrdac Decision as providing the basis upon which to establish that an arrangement existed between Wanslea Grove and the employer.
 Firstly, there was clearly communication between Wanslea Grove and Mr Lucas during the meeting held on 23 August 2011, and following that meeting there were further communications including the provision of the requested information. Secondly, there was an explicit understanding that the employer would be taking over the operation of the hotel on Monday, 29 August 2011. There was also an expectation that Mr Pana from Wanslea Grove was going to hand over the keys to the hotel to Mr Lucas on Monday 29 August. 4 Although this did not eventuate because Wanslea Grove abandoned the hotel on the preceding Friday.
 It should be noted that these factual circumstances are significantly different to those identified in the Zabrdac Decision in particular I refer to paragraphs 81 and 82 of that Decision.
 The determination of the jurisdictional objection raised in this matter has involved a contest about whether or not the applicant was a person protected from unfair dismissal. The absence of any such protection was asserted to have occurred because the previous employment of the applicant with another employer should not count as service for the purposes of the minimum employment period established under ss. 382, 383 and 384 of the Act.
 The determination of the jurisdictional objection has turned upon an analysis of the meaning to be given to the word “arrangement” appearing in subsection 311(3) of the Act so as to establish whether the transfer of assets from the old employer to the new employer occurred in accordance with an arrangement between those two entities.
 I have adopted, with respect, an approach to the meaning to be given to the word “arrangement” as was articulated by Commissioner Bissett in the Zabrdac Decision. I have supplemented that approach with my own statutory context considerations. In conclusion I find that the evidence has established that there was an arrangement between the old employer and the new employer involving a transfer of assets as contemplated by subsection 311(3) of the Act. Therefore the applicant was a person who was a transferring employee in relation to a transfer of business from the old employer to the new employer.
 Consequently the applicant had completed the minimum employment period and is a person protected from unfair dismissal.’
The appellant's submissions
 The appellant submitted that permission to appeal should be granted because it would be in the public interest to do so, and the Commissioner's decision contained significant errors of fact. It was accepted by the parties and the Commissioner that the issue for determination in the proceedings before him was whether a transfer of business had occurred pursuant to s.311 (3) of the Act. The appellant submitted that the correct application of term "arrangement" had not been considered by a Full Bench, and that there was a public interest in this occurring.
 The appellant submitted that the Commissioner correctly identified the decision of Commissioner Bissett in Zabrdac as outlining the necessary elements of an “arrangement” pursuant to the Act. The three elements so identified formed a convenient and correct basis to test the evidence and whether it could be said that the facts as found by the Commissioner could be said to exist, those elements being (Zabrdac at ):
 The appellant submitted that the only communication that occurred between Wanslea Grove and the appellant was directed to the establishment of the management agreement between the owner of the hotel and the appellant, and not to any possible arrangement with Wanslea Grove.
 The appellant referred to the Commissioner’s finding that there was "an explicit understanding that the [appellant] would be taking over the operation of the hotel on Monday, 29 August, 2011." 3 It was submitted that for any "explicit understanding” to enliven s.311 (3) it would have to be with Wanslea Grove, but there was simply no evidence of such an understanding. There was no evidence that the appellant assumed an obligation, or gave an assurance or undertaking, to Wanslea Grove, that he would act in a certain way. While the appellant did expect to be taking over the operation of the hotel on Monday 29 August, 2011 that was pursuant to its dealings with the owner. Any expectation in relation to the keys being passed from Wanslea Grove to Mr Lucas (which did not in fact occur) did not arise from an arrangement between the two parties, but merely from a statement by Wanslea Grove that it would vacate the premises on 29 August, 2011.
 The appellant also submitted that the Commissioner erred significantly by relying on the absence of communication with Ms Hillie in interpreting the term "arrangement". It submitted that it was difficult to conceive how it would be apparent to the appellant to correspond with Ms Hillie. The appellant began managing the hotel on 29 August 2011, though it could only open the gaming room for the first few weeks. On Monday 29 August, Mr Lucas contacted a person he knew that he had seen working at the hotel at least a year earlier, and enquired as to whether he was looking for work. That contact recommended Ms Hillie as another person who could work at the hotel. Ms Hillie was subsequently employed. It would not have occurred to the appellant to write to Ms Hillie about her employment with someone with whom he had no arrangement or dealings with, and advise her that he was not recognising her prior service. This was not a case of incoming employer engaging and existing workforce. The appellant was entering an abandoned and dilapidated premise, and doing what it could pursuant to its management agreement with the owner to get those premises operating, albeit on an initially significantly reduced basis.
The respondent’s submissions
 The respondent submitted that the request by Mr Lucas for lists of utilities, assets, and employees and the e-mails sent by Wanslea Grove in response, constituted evidence of a direct arrangement between the appellant and the respondent's former employer. In particular, an arrangement was made for Mr Lucas to use some of Wanslea Grove’s assets, including $1000 worth of stock, poker machine hardware and past employees.
 The respondent submitted that when the hotel was reopened on 29 August 2011, the appellant obviously needed staff to work and contacted one of the employees who recommended Ms Hillie to work in the gaming room. The appellant had in his possession the e-mail from Wanslea Grove which had the list of employees’ names and contact details. Ms Hillie began work that day and continued working there until her dismissal on or around 16 December 2011.
 The respondent submitted that s.382 of the Act is beneficial legislation for the employee and if the onus is met by the employee, entitles the employee to make a claim for unfair dismissal. Section 384 (2) exists to protect regular and systematic employees from being dismissed unless the new employer informs them in writing that their period of service with the old employer is not recognised. While there was a change of management, Ms Hillie's job did not change and she did not receive written notification that she was not in continuous employment.
 For Ms Hillie to be protected from unfair dismissal she would need to be a “transferring employee in relation to a transfer of business” from Wanslea Grove to the appellant within the meaning of s. 384 (2) (b) (i). In the circumstances of this case, for a “transfer of business” to have occurred there would need to be “a connection” between Wanslea Grove and the appellant within the meaning of s. 311 (3). For such a connection to exist the appellant would need in effect to own or have the beneficial use of some or all of the assets (whether tangible or intangible) that Wanslea Grove owned or had the beneficial use of “in accordance with an arrangement” between Wanslea Grove and the appellant. The evidence concerning the appellant having the beneficial use of some assets which Wanslea Grove previously had the beneficial use is fairly sketchy. However the only point of contention in this appeal is whether the appellant obtained the beneficial use (or ownership) of those assets “in accordance with an arrangement” between Wanslea Grove and the appellant.
 We agree with Commissioner Bissett in Zabrdac 4 that guidance as to the use and meaning of the word “arrangement” can be found in a previous judgements concerning trade practices and taxation matters. In Australian Competition & Consumer Commission v CC (NSW) Pty Ltd5 Lindgren J considered the meaning of “arrangement or understanding”. He noted:
‘135 In Newton v Federal Commissioner of Taxation  UKPCHCA 1; (1958) 98 CLR 1 the Privy Council was concerned with the expression "[e]very contract, agreement, or arrangement" in s 260 of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth), and expressed the opinion (at 7):
"that the word `arrangement' is apt to describe something less than a binding contract or agreement, something in the nature of an understanding between two or more persons - a plan arranged between them which may not be enforceable at law." (emphasis supplied)
Clearly, the scope of ss 45(2) and 45A(1) with which I am concerned extends beyond legally enforceable agreements, that is, contracts.
136 In British Basic Slag Ltd v Registrar of Restrictive Trading Agreements  1 WLR 727, the English Court of Appeal had to consider the meaning of the expression "any agreement or arrangement, whether or not it is or is intended to be enforceable" in s 6 of the Restrictive Trade Practices Act 1956 (UK). It was argued that the trial Judge had erred in holding that an arrangement within the meaning of the expression exists when, by communications between the parties, "each has intentionally aroused in the other an expectation that he will act in a certain way." It was submitted that the expression also required "that there must be mutuality in the acceptance of rights and obligations". In the Court of Appeal, Willmer LJ said (at 739):
" ..., I think it is highly significant that Parliament did not see fit to include any definition of `arrangement.' I infer from this that it was intended that the word should be construed in its ordinary or popular sense. Though it may not be easy to put into words, everybody knows what is meant by an arrangement between two or more parties. If the arrangement is intended to be enforceable by legal proceedings, as in the case where it is made for good consideration, it may no doubt properly be described as an agreement. But the Act of 1956 clearly contemplates that there may be arrangements which are not enforceable by legal proceedings, but which create only moral obligations or obligations binding in honour. This seems to me to be entirely consistent with the dictum of Upjohn J. to which I have already referred. Nor do I consider that there is any inconsistency between that and the view expressed by the judge in the present case. For when each of two or more parties intentionally arouses in the others an expectation that he will act in a certain way, it seems to me that he incurs at least a moral obligation to do so. An arrangement as so defined is therefore something `whereby the parties to it accept mutual rights and obligations.'"
In the same case, Diplock LJ said that there were many ways in which arrangements might be made and (at 747):
"[I]t is sufficient to constitute an arrangement between A and B, if (1) A makes a representation as to his future conduct with the expectation and intention that such conduct on his part will operate as an inducement to B to act in a particular way, (2) such representation is communicated to B, who has knowledge that A so expected and intended, and (3) such representation or A's conduct in fulfilment of it operates as an inducement, whether among other inducements or not, to B to act in that particular way." (at 747)
137 In Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286, a Full Court of this Court had to consider the expression "a contract, arrangement or understanding to the extent that it is in restraint of trade or commerce" in the then s 45(2)(b) of the Act. Smithers J referred to Newton and British Basic Slag and said (at 291) of the expression "arrangement", that by parity of reasoning with British Basic Slag:
" ... the existence of an arrangement of the kind contemplated in s.45 is conditional upon a meeting of the minds of the parties to the arrangement in which one of them is understood, by the other or others, and intends to be so understood, as undertaking, in the role of a reasonable and conscientious man, to regard himself as being in some degree under a duty, moral or legal, to conduct himself in some particular way, at any rate so long as the other party or parties conducted themselves in the way contemplated by the arrangement."
His Honour added:
"Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act."
138 In Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 40 FLR 83, Fisher J considered the notion of a "contract, arrangement or understanding" in the context of s 45 of the Act. After setting out certain passages from the cases, his Honour concluded (at 89):
"A significant feature of each of the above passages is the emphasis placed upon the necessity for each of the parties to have communicated with the other, for each to have raised an expectation in the mind of the other, and for each to have accepted an obligation qua the other. These are in my opinion the essential elements of the requisite meeting of minds." (emphasis supplied)
(His Honour appears to have seen the words "arrangement" and "understanding" as synonymous in the present context, as Toohey J seems to have done in Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 at 32.)
139 On appeal in the Nicholas Enterprises case (see Morphett Arms Hotel Pty Ltd v Trade Practices Commission  FCA 46; (1980) 30 ALR 88), the Full Court expressed agreement with Fisher J's statement and application of the relevant principles of law subject to one qualification: the Court thought it possible to have an understanding restricted to the conduct which one of the parties to it would pursue "without any element of mutual obligation, in so far as the other party or parties to the understanding are concerned" (at 91-92). It was not, however, necessary for their Honours to reach any final view on this question which has since been left open, although the view has been expressed that in an arrangement or understanding where one party assumes an obligation, a reciprocal obligation would commonly be assumed by the other party or parties; see Trade Practices Commission v Email Ltd  FCA 86; (1980) 43 FLR 383 (Lockhart J) at 395-397; Trade Practices Commission v Parkfield Operations Pty Ltd  FCA 27; (1985) 5 FCR 140 (Fox J) at 144; Trade Practices Commission v Service Station Association Ltd  FCA 405; (1993) 44 FCR 206 (FC) at 230-231 (Lockhart J), 238 (Spender and Lee JJ).
140 The present case does not raise the issue of the undertaking of an obligation by one Tenderer and not by the others: the positions of all four Tenderers were relevantly identical.
141 The cases require that at least one party "assume an obligation" or give an "assurance" or "undertaking" that it will act in a certain way. A mere expectation that as a matter of fact a party will act in a certain way is not enough, even if it has been engendered by that party. In the present case, for example, each individual who attended the Meeting may have expected that as a matter of fact the others would return to their respective offices by car, or, to express the matter differently, each may have been expected by the others to act in that way. Each may even have "aroused" that expectation by things he said at the Meeting. But these factual expectations do not found an "understanding" in the sense in which the word is used in ss 45 and 45A. The conjunction of the word "understanding" with the words "agreement" and "arrangement" and the nature of the provisions show that something more is required. With respect, the first passage set out above from the judgment of Smithers J in Top Performance Motors, although addressing the term "arrangement", seems to me to describe appropriately that further necessary element of the "understanding" to which the provisions refer.’
 In accordance with the Explanatory Memorandum the word “arrangement” should be interpreted broadly. It certainly need not imply a formal let alone legally enforceable agreement between the two parties. However the expression must still be given some content. From the authorities it can be concluded that for an “arrangement” to exist one party must have assumed at least a moral obligation, or given an “assurance” or “undertaking” that it will act in a certain way.
 Did the transfer of assets (such as they were) between Wanslea Grove and the appellant occur in an accordance with an “arrangement” between them? The respondent cited as evidence of such an arrangement the request by Mr Lucas for Wanslea Grove to provide him with certain information, and the subsequent provision of that information. However that in no way created any obligation, legal, moral or otherwise on the part of the appellant. For example, while a list of employees was sent to the appellant, there was no evidence that this created an obligation on the part of the appellant to employ anyone on that list. In fact there is no evidence that the list was used at all. The uncontested evidence is that Mr Lucas contacted a person named Mosan whom he had employed previously and who he had seen working at the hotel and enquired whether he was looking for work. Mosan recommended Ms Hillie as another person who could work at the hotel 6.
 The Commissioner referred in his decision [at 45] to an explicit understanding that the appellant would be taking over the operation of the hotel on Monday 29 August 2011. However that reflected an arrangement between the owner of the hotel and the appellant. Nor is there any evidence that Mr Lucas’s misplaced expectation that he might receive the keys from Wanslea Grove suggest any arrangement he had with Wanslea Grove. Whatever arrangement existed was between the owner of the hotel and the appellant. This does not establish a connection between the “old employer” and the “new employer” as required by s.311 (3).
 This appeal provides an opportunity for this full bench to consider the correct application of the word arrangement in section 311 of the Act. For this reason we consider it in the public interest grant permission to appeal and we do so.
 Having considered the evidence before Commissioner Cambridge we are satisfied that there was no evidence to support his finding that there was an arrangement between Ms Hillie’s previous employer and the respondent involving a transfer of assets as contemplated by ss 311(3). The finding was not available on the evidence. It follows that Ms Hillie did not complete the minimum of employment period as required by the Act and is not therefore a person protected from unfair dismissal.
 The appeal is upheld.
SENIOR DEPUTY PRESIDENT
B. Cross of counsel with R Kakwani and P Ryan for the appellant.
E. Lloyd for the respondent.
Final written submissions:
1 Ms Vanessa Hillie v World Square Pub  FWA 6806
2  FWAFB 1891 at  Boulton J, Harrison, SDP, Deegan C
3 At 
4 Peter Zabrdac v Transclean Facilities Pty Ltd  FWA 4492
5 (1999) 92 FCR 375, 406-409
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