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Rankin v Moreton Bay Regional Council[2019] QIRC 33

Rankin v Moreton Bay Regional Council[2019] QIRC 33

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Rankin v Moreton Bay Regional Council [2019] QIRC 033

PARTIES:

Rankin, Richard

(Applicant)

v

Moreton Bay Regional Council

(Respondent)

CASE NO:

TD/2018/57

PROCEEDING:

Application for reinstatement

DELIVERED ON:

18 February 2019

MEMBER:

HEARD AT:

Pidgeon IC

Brisbane

ORDER:

Application dismissed.

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - where jurisdiction to be determined - whether respondent is employer of applicant.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 7, s 317, s 318

Fair Work Act 2009 (Cth), s 14

Reasons for Decision

 Application Details

  1. [1]
    Mr Rankin was a Local Laws Ranger with the Moreton Bay Regional Council (the Council).  His role ended on 16 May 2018 when he was told that his role was being terminated immediately.   He filed an application for reinstatement under s 317 of the Industrial Relations Act 2016 (the Act) on 25 May 2018.

Background

  1. [2]
    Section 318 of the Act requires the Queensland Industrial Relations Commission (the Commission) to hold a conference to attempt to settle an application under s 317 by conciliation before it hears the application.
  1. [3]
    A conciliation conference was held before Black C on 8 June 2018.
  1. [4]
    The Respondent opposed the application on jurisdictional grounds and maintained that it was not the employer of Mr Rankin and that it could not have terminated his employment.
  1. [5]
    Mr Rankin requested that the matter go to arbitration.
  1. [6]
    In response to a Directions Order issued on 5 February 2019, the Respondent requested that a jurisdictional hearing be held to determine whether the application could be heard by the Commission.
  1. [7]
    A jurisdictional hearing was held on 14 February 2019.

Applicant's Submissions

  1. [8]
    Mr Rankin explained that the process followed in commencing his employment at the Council involved:
  1. seeing an advertisement for the role on a job seeking website;
  1. sending his resume to HRM Consulting and Contracting (HRM);
  1. attending an interview at the Council; and
  1. receiving a letter of offer from HRM which included collection of his banking details and instructions to complete a timesheet and email it to HRM at the end of each week.
  1. [9]
    He maintains that despite the relationship he had with HRM in terms of provision of timesheets and pay, his actual employer was the Council.  Some of the reasons given were:

-  Council conducted the interview;

-  Council provided him with training;

 he wore a Council uniform and name badge;

-  he identified himself as a worker for Council rather than HRM;

-  Council provided him with job instructions and tasks;

-  if he was ill, he needed to inform Council, not HRM; and

-  Council ended his employment by telling him his role was terminated with immediate effect.

  1. [10]
    Mr Rankin acknowledges that he knew his pay was coming through HRM and he provided the Commission with a copy of his initial letter of offer.
  1. [11]
    He cannot recall being provided with a document including the terms and conditions of his employment.  He says it is possible that he was.
  1. [12]
    Mr Rankin indicated that it was widely known in the workplace that once people had successfully completed six months as a casual worker they were often given the opportunity to apply to be on a 'Council contract' (Mr Rankin's words).
  1. [13]
    He states that it was his expectation that he would be offered the opportunity to move to a 'Council contract'.
  1. [14]
    Mr Rankin indicated that he understood one of the differences between casual work and a 'Council contract' was that those on a 'Council contract' were paid directly by the Council as employer rather than through the HRM system.
  1. [15]
    Mr Rankin acknowledged that his engagement with Council occurred through HRM.
  1. [16]
    Mr Rankin stated he commenced proceedings in the Fair Work Commission but following conciliation where he says that HRM indicated that they have not terminated his employment and continue to seek work for him, he has discontinued proceedings in the Fair Work Commission.

 Respondent's Submissions

  1. [17]
    The Council maintains that the Mr Rankin was not an employee of the Council.
  1. [18]
    It is the view of Council that Mr Rankin was employed on a casual basis with HRM, a national system employer and that Council engaged Mr Rankin through a labour hire arrangement with HRM.

 Consideration of Submissions

  1. [19]
    Mr Rankin's day to day experience at work and in the event of termination of his role may well have reflected his understanding or past experience of an employer/employee relationship however, the letter of offer, method of payment of his wages and circumstances leading to his initial engagement are all evidence that Council was not his employer.  

Jurisdiction

  1. [20]
    Section 7(1) of the Act states that an employer is a person who "is not a national system employer within the meaning of the Commonwealth Fair Work Act 2009 ... ".
  1. [21]
    Section 14(1)(a) of the Fair Work Act 2009 states that a national system employer is: "a constitutional corporation, so far as it employs, or usually employs an individual … ".
  1. [22]
    Based on the submissions of both Mr Rankin and the respondent, it is clear that Mr Rankin's employer is HRM.
  1. [23]
    As HRM is a national system employer, there is no jurisdiction for the Commission to hear this matter.
  1. [24]
    The application is dismissed.
Close

Editorial Notes

  • Published Case Name:

    Rankin v Moreton Bay Regional Council

  • Shortened Case Name:

    Rankin v Moreton Bay Regional Council

  • MNC:

    [2019] QIRC 33

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    18 Feb 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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