[2015] FWC 221


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Malcolm Watson
Oliver-Ramsay Group Pty Ltd



Application for relief from unfair dismissal - Threshold jurisdictional issue to be determined - Whether applicant has satisfied minimum employment period - Fair Work Act - ss. 394, 382, 383, 384, 309, 310, 311 and 22.


[1] This decision concerns an application by Mr Malcolm Watson for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The application arises from the termination of Mr Watson’s employment with Oliver-Ramsay Group Pty Ltd (Oliver-Ramsay Group) at a meeting on 25 September 2014 and a letter of the same date. Oliver-Ramsay Group has objected to the application on the basis that Mr Watson’s continuous service at the time of the termination of his employment was less than the minimum period prescribed by the Act.

[2] As there are no contested facts to determine the parties have agreed that the matter could be dealt with on the papers and were given an opportunity to file written submissions in relation to the jurisdictional issue.

[3] Throughout these proceedings, Mr Watson has represented himself and Oliver-Ramsay Group has been represented by the Australian Security Industry Association Limited.


[4] Oliver-Ramsay Group was successful in tendering for the provision of security services at the Federation University in Ballarat with effect from 1 July 2014. Prior to that date Mr Watson was employed by the previous contractor as a security guard at the University.

[5] By letter dated 25 June 2014 Mr Watson was offered employment with Oliver-Ramsay Group as a full time Security Officer to commence work on 30 June 2014. His first day of rostered work was 1 July 2014.

[6] In a letter dated 25 September 2014 Oliver-Ramsay Group advised Mr Watson that it had decided not to continue his employment beyond the probationary period. On termination he was paid a week’s pay in lieu of notice and outstanding entitlements.

[7] These dates are not disputed. However Mr Watson also contends that he had worked at the University doing the same job since September 2006.

The Legislative Test

[8] In accordance with s.382 of the Act a person is protected from unfair dismissal if the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period.

[9] The terms “minimum employment period” and “period of employment” are defined in ss. 383 and 384 of the Act. These sections provide:

[10] There is no definition of “transferring employee” or “transmission of business” in the unfair dismissal provisions of the Act. Section 12 of the Act contains a reference to ss. 311, 768AD and 768AE with respect to these terms. Assuming that the relevant employers are national system employers, Part 2-8 of the Act contains the relevant provisions. Sections 309-311 within that Part of the Act provide:

[11] There is a deeming provision in s.22 of the Act. It relevantly provides:

[12] Section 22 is the first relevant provision. It deems employment with a former employer to be service with a new employer in certain circumstances and thereby modifies the effect of s.384(1). In the absence of s.22 only service with the new employer can count for the purposes of the qualifying period of employment in s.382. In order for the deeming provision to apply, the circumstances in this matter need to match those described in ss. 22(7)(a) or 22(7)(b).

[13] Paragraph (a) only applies when the two employers are associated entities. There is no suggestion that this is the case here. The Oliver-Ramsay Group is not an associated entity of the previous contractor, D W Security.

[14] Paragraph (b) applies to a transferring employee in relation to a transfer of business. It is not clear that the definitions of these terms in Part 2-8 apply for the purposes of Part 3-2. The provisions appear in a part of the Act regarding the transmission of instruments. If they do not apply, a more general meaning of the terms may need to be applied.

[15] The circumstances involve the loss of a contract to a competitor contractor, and no transfer of assets from the former contractor to the new contractor. These circumstances do not fall within any of the requisite circumstances in sub-sections (3)-(6) of s.311 - the definition of a transfer of business. Regardless of whether the employer informed the employee in writing as provided for in s.384(2)(b), there is no basis to suggest that the service with the previous employer should be taken into account because there is no transfer of business.

[16] Because the context of s.311 is different to the unfair dismissal provisions of the Act, and it is not clear that the definitions for the purposes of various instruments extends to the interpretation of other provisions of the Act, it is necessary to consider the meaning of the term “transfer of business” independently of the definition in s.311. The general notion of a transmission of business has been dealt with by the High Court in relation to the broader description of whether an employer is a “successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a party to the industrial dispute, including a corporation that has acquired or taken over the business or part of the business of the employer” in s.149 of the Workplace Relations Act 1996. In that regard the High Court has said: 1

[17] However in my view, the concept of a “transfer of business” in s.22(7) is narrower than the concept of a “successor, etc to a business” in s.149. The former describes a process that implies a transaction between two entities. The latter describes the net effect of events. As the High Court made clear in Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd, the latter concept does not necessarily depend on a transaction between the parties. Gleeson CJ, Hayne, Callinan and Heydon JJ said (at [37-38]): 2

[18] The definition of transfer of business in s.311 requires a connection between the employers of a requisite kind. If that definition does not apply, I am nevertheless of the view that the general notion of a transfer of business involves a similar type of connection or transaction between the two employers. There is no such connection present in this case. It follows that these circumstances do not involve a transfer of business.


[19] The relevant facts are not contested in this case. However the provisions of the Act regarding periods of employment are somewhat confusing and it is necessary to consider various parts of the Act to discern the proper application of the Act. It is sufficient in this case to note that unless the two employers are associated entities, or a transmission of business occurs, the relevant period of employment for the purposes of the qualifying minimum period of employment is the period of continuous service the employee has completed with the current employer as an employee. This period is less than the qualifying period referred to in s.383.

[20] The two employers are not associated entities. Further, there is no transmission of business between the previous security contractor at the University and the Oliver-Ramsay Group. Mr Watson’s period of service with the Oliver-Ramsay Group was approximately 3 months. The minimum period of employment in his case is six months. Consequently Mr Watson is not protected from unfair dismissal under the Act and his application must be dismissed. An order to this effect is issued in conjunction with this decision (PR559900).


Final written submissions:

Malcolm Watson on 15 December 2014.

Oliver-Ramsay Group Pty Ltd on 19 December 2014.

 1   PP Consultants Pty Ltd v Finance Sector Union [2000] HCA 59; (16 November 2000) per Gleeson CJ, Gaudron, McHugh and Gummow JJ at [15].

 2   (2005) 138 IR 252.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR559899>