Fox v Programmed Integrated Workforce Ltd
[2021] QIRC 260
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- Unreported Judgment
- Fox v Programmed Integrated Workforce Ltd[2021] QIRC 260
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Fox v Programmed Integrated Workforce Ltd[2021] QIRC 260
Fox v Programmed Integrated Workforce Ltd[2021] QIRC 260
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Craig Geoffrey Fox v Programmed Integrated Workforce Ltd [2021] QIRC 260 |
PARTIES: | Craig Geoffrey Fox (Applicant) v Programmed Integrated Workforce Ltd (Respondent) |
CASE NO.: | B/2021/4 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 22 July 2021 |
HEARING DATE: | 22 July 2021 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – RECORDS AND WAGES – application made by inspector appointed pursuant to s 899 of the Industrial Relations Act 2016 for an order that the respondent pay an employee's unpaid wages in the form of pro rata long service leave – respondent contends it is not liable for the employee's pro rata long service leave because of the transfer of calling between it and a third party prior to the termination of the employee's employment – applicant, by way of an application in existing proceedings, requested the Commission make directions orders that the applicant deliver particular documents to the third party and that the applicant send a letter to the third party indicating that the Commission had determined it may have an interest in the proceedings and inviting the third party to be heard – consideration of whether, in all the circumstances, the Commission should exercise discretion to make directions orders of the kind sought by the applicant – directions orders of the kind sought by the applicant made because the defence raised by the respondent will require a consideration of the legal interest of the third party |
LEGISLATION: | Industrial Relations Act 2016, s 95, s 132, s 429, s 447, s 451, s 475, s 476, s 539 and s 899 Industrial Relations (Tribunals) Rules 2011, r 41 |
CASES: | Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 China First Pty Ltd v Mount Isa Mines Ltd [2018] QCA 350; [2019] 3 Qd R 173 Gilbert v Metro North Hospital and Health Service & Ors [2020] QIRC 084 Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 95 ALJR 128 Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2020] ICQ 021 |
APPEARANCES: | Mr C. Fox, the Applicant. Ms K. Greig of the Respondent. |
HIS HONOUR:
The applicant is an industrial inspector appointed pursuant to section 899 subsection (2) of the Industrial Relations Act 2016, which I will refer to as the IR Act.
As a consequence, the applicant has power, pursuant to the combined effect of section 475 subsection (1) paragraph (a) and section 476 subsection (2) paragraph (e) of the IR Act to make an application that the Commission order payment of an employee’s unpaid wages.
By application filed on 13 January 2021, Mr Fox made an application for the payment of pro rata long service leave said to be payable and unpaid by Programmed Integrated Workforce Pty Ltd, which I will refer to as PIW, to Mr Andrew Haining, in the amount of $8,910 gross. I will refer to that application as the application.
The statement of material facts accompanying the application relevantly contended: (a) PIW conducts the labour hire business and Mr Haining had been continuously employed by PIW from 3 October 2011 to 2 October 2019. (b) Mr Haining was placed with a host employer, being the Brisbane City Council, which I will refer to as the council. (c) Mr Haining was employed in a casual capacity as a general hand/gardener. (d) On or around August 2019, the council awarded the contract, to supply labour, away from PIW and awarded the contract to a new labour hire provider, Randstad Pty Ltd, which I will refer to as Randstad. (e) On 4 July 2019, PIW sent an email to all employees affected by the loss of the council contract stating, amongst other things, that:
Should employees wish to remain in your current role at BCC you will be asked to transition to Randstad.
(f) Following the loss of the contract to the council, Mr Haining received no further offers of employment from PIW. (g) On 2 August 2019, PIW ceased being the employer of Mr Haining and Mr Haining commenced employment with Randstad. (h) Mr Haining continued to be assigned to the council in the capacity of a casual general hand/gardener, and, (i) Mr Haining resigned from Randstad effective 27 October 2019 due to health-related reasons.
The applicant then contends: (a) PIW’s position is that Mr Haining became an employee of Randstad because of a "transfer of a calling" from Randstad to PIW when it, that is Randstad, was awarded the contract by the council to supply labour. (b) If PIW’s position is correct, Randstad would be responsible for the pro rata long service leave accrued with PIW upon Mr Haining’s resignation from Randstad. (c) The position of the Office of Industrial Relations is that, firstly, Mr Haining did not become an employee of Randstad because of a transfer of calling and, secondly, PIW was responsible for payment of the pro rata long service leave accrued during Mr Haining’s period of service with PIW. (d) A pro rata long service leave entitlement under section 95 subsection (4) paragraph (c) of the IR Act is contingent upon the termination of an employee’s service due to a dismissal at the instigation of the employer. (e) PIW’s position is that even if Mr Haining did not become an employee of Randstad due to a transfer of a calling, it would still not be liable for the pro rata long service as Mr Haining resigned from PIW to take up employment with Randstad and, (f) The Office of Industrial Relations’ position is that Mr Haining did not resign but rather his service was instead terminated when he was dismissed by PIW.
In a response filed on 14 May 2021, which I will refer to as the response, PIW contended that: (a) On or around 3 August 2019 there was a transfer of calling between PIW and Randstad within the meaning of section 132 subsection (1) paragraph (a) of the IR Act or, (b) There was a transfer of calling within the meaning of section 132 subsection (1) paragraph (b) of the IR Act from PIW to Randstad and, (c) In either case, firstly, because of the application of section 132 subsection (2) of the IR Act, the transfer of calling did not break Mr Haining’s continuity of the service and, secondly, because of the application of section 132 subsection (3) of the IR Act, Mr Haining’s
period of service of seven years and 10 months with PIW was taken to be service with Randstad and, (d) Mr Haining was not dismissed by PIW.
By application in existing proceedings filed on 24 May 2021, the applicant requests that the Commission make certain directions orders namely, (a), that the applicant by a specified time and date deliver to Randstad a copy of the directions the applicant request the Commission to make, the application, a directions order of the Commission dated 16 March 2021, a statement of agreed facts, the response, and the applicant’s application in existing proceedings.
The applicant also request directions orders be made that the applicant deliver the above mentioned documents under cover of a letter drawing the attention of Randstad to the fact that the documents are relevant to a matter being mentioned in the Commission on a date to be fixed and that the Commission has determined that the recipient may have an interest in the matters before the Commission and may wish to be heard.
The applicant also request directions orders be made, that the matter be mentioned on a date to be fixed and that should Randstad wish to be heard on any matters raised in the parties’ documents, it is to appear at the mention date at which time further directions will be made as to the further conduct of the matter.
In support of the relief sought in the application in existing proceedings, the applicant makes the following submissions: (a) on the material filed, it appears the Commission’s determination may have a material effect on the legal and financial interests of Randstad, namely, one, whether or not a transfer of calling occurred between PIW and Randstad within the meaning of section 132 of the IR Act, and two, if so, whether Mr Haining’s continuity of service was not broken when he began work with Randstad such that the period of seven years and 10 months for which the pro rata long service leave entitlement is claimed, if payable, would fall to be payable by Randstad.
(b) Because the Commission’s decision may affect Randstad’s financial legal interest, it should be given an opportunity to apply to be heard in the proceedings to mitigate the possibility of further litigation regarding the recovery of Mr Haining’s pro rata long service leave entitlement and. (c) The Commission has the power to make the directions the applicant proposes by virtue of section 451 subsection (1) and, or in the alternative, section 451 subsection (2) paragraphs (a) or (c) of the IR Act, having regard to the Commission’s functions and the objects of the IR Act.
In expanding upon these points in his written submissions, the applicant submitted: (a) If the Commission accepts the matters contended in the proceeding may affect Randstad’s financial and legal interests, it is appropriate to notify Randstad of the proceedings and give it the opportunity to seek to be heard should it choose. (b) The proposed directions ought to capture a course consistent with the principle of procedural fairness that:
A person against whom a claim or charge is made must be given a reasonable opportunity of appearing and pleading its case.
(c) If Randstad was not given the opportunity to consider its position in this case, it may have the effect of, firstly, requiring Randstad to argue before the Commission in further proceedings that a transfer of calling did not occur against a decision of the Commission to the contrary or, secondly, may be grounds for Randstad to appeal the decision in these proceedings for a denial of procedural fairness and, (d) Neither of the above possibilities would be an efficient use of the Commission’s time and resources nor that of the parties.
The applicant went on to submit that having regard to the Commission’s functions as specified in section 447 of the IR Act, the objects of the IR Act and the Commission’s power pursuant to section 451 subsection (1) of the IR Act, the directions order the applicant requests the Commission to make are:
… a practical, fair and efficient solution to resolve the possible complications these submissions identify as capable of arising from proceedings.
In making this submission, the applicant referred to the decision of Justice Davis, President of the Industrial Court of Queensland, in Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council, reported at [2020] ICQ 021, and submitted that in that case his Honour identified that arguments raised by the parties on appeal affected other parties who may have an interest in the matter being heard and programmed directions accordingly. PIW opposes the directions order that the applicant requests the Commission make.
In summary, PIW’s position is that: (a) The Commission’s determination of the application cannot materially affect Randstad’s interests because the only order that is sought in the application is against PIW, the consequence of which is that the proceeding can only resolve issues between Mr Haining and PIW. (b) Because the application cannot materially affect Randstad’s interests, it could not be denied natural justice if the directions orders the applicant request the Commission to make were not made. (c) If the Commission declined to make an order against PIW, the result would be an order dismissing the application which would be accompanied by reasons which may be that a transfer of calling did not occur between it and Randstad and, (d) The applicant is responsible for ensuring that the proceeding is properly constituted, joining all necessary parties and, if Randstad was a necessary party, it ought to be joined.
In my view, there is no doubt that pursuant to section 451 of the IR Act or pursuant to rule 41 of the Industrial Relations (Tribunals) Rules 2011, the Commission has the power to make directions orders of the kind requested by the applicant. The question is whether in this case the circumstances are such that as a matter of discretion, I should make the directions orders requested by the applicant.
In my view this is a case where I am persuaded I should make directions orders of the kind requested by the applicant. There are a number of reasons for this.
First, the defence by PIW to the applicant’s application on behalf of Mr Haining squarely contends that the reason why PIW has no liability in respect of the claim for Mr Haining’s long service leave is that there was a transfer of calling from it to Randstad within the meaning of either section 132 subsection (1) paragraph (a) or section 132 subsection (1) paragraph (b) of the IR Act.
I accept the submissions made by PIW that in respect of the determination of the applicant’s application, I would only be determining whether or not PIW was liable for any long service leave said to be payable and unpaid to Mr Haining.
But, in the course of making that determination, having regard to PIW’s defence, I will be required to make a determination as to whether or not there was a transfer of calling, transfer of a calling from PIW to Randstad. To that extent, Randstad’s interests are directly affected.
The principal aspect of PIW’s defence is that when Mr Haining’s employment ended in circumstances where an entitlement to long service leave accrued to him, because of the transfer of calling between it and Randstad, the liability for that entitlement to long service leave lay with Randstad.
Secondly, section 429 of the IR Act provides that the Commission is established as a court of record in Queensland and in respect of the determination of the application made by the applicant, the Commission will be exercising judicial power as opposed to arbitral power.
The jurisdiction conferred on a court established by legislation is necessarily conditioned by the requirement that it observe procedural fairness in the exercise of that jurisdiction.
The authority for that proposition is Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd reported at [2021] HCA 2, also reported at (2021) 95 ALJR 128 at paragraph 47, in the decision of Chief Justice Kiefel and Justices Bell, Gageler and Keane.
Procedural fairness requires the avoidance of practical injustice and it requires, at the very least, the adoption of procedures that ensure to a person whose right or legally protected interest may be finally altered or determined by a court order, a fair opportunity to respond to evidence on which that order might be based. The authority for that proposition is Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7, also reported at (2013) 252 CLR 38 at paragraph 188, in the decision of Justice Gageler.
As referred to earlier, no order is sought against Randstad by the applicant. However, because of PIW’s defence in which it contends that there was a transfer of calling between it and Randstad, Randstad’s legal interest, namely, whether or not there was a transfer of calling between PIW and it, within the meaning of section 132 of the IR Act, may be determined by any decision and order I make.
In the same vein, the decision of Justice Davis in Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council, assists the applicant.
One of the reasons why his Honour made the orders he did was that persons, principally employee and employer organisations, who were not party to the appeal between the appellant and the respondent in that case, were directly affected by the issue on appeal, namely, the validity of certain awards made by the Commission that applied to those persons and their members.
In those circumstances, those persons did have a right or legally protected interest that may be finally altered or determined by an order of the Industrial Court.
For the reasons to which I have just referred, Randstad’s legal interest, whether or not there was a transfer of calling between PIW and it, will fall to be determined by any decision I make.
Thirdly, the principle case referred to by PIW in its submissions, namely, China First Pty Ltd v Mount Isa Mines Limited, reported at [2018] QCA 350, also reported at [2019] 3 Qd R page 173, referred to by PIW in paragraph 7 of its written submissions, concerns the principle that where a court in civil proceedings is invited to make or proposes to make orders directly affecting the rights and liabilities of a non party, the non party is a necessary party in order to be joined and that it is the responsibility of a plaintiff to ensure the proceedings is properly constituted by joining all necessary parties.
The passages in the decision of Vice President O'Connor in the case of Gilbert v Metro North Hospital Health Service & Ors, reported at [2020] QIRC 84, similarly, like the China First case, does not assist PIW.
The passages in the decision of Vice President O'Connor in Gilbert referred to by PIW in paragraph 10 of its submissions concerns the considerations in respect of the right of a person to intervene in proceedings and the considerations in respect of which a person should be given the right to be heard in proceedings.
The directions order sought by the applicant, if made, do not directly affect the rights and liabilities of Randstad. The directions order sought by the applicant have the ultimate effect of informing Randstad of the applicant’s application, that Randstad may have an interest in the proceeding and that Randstad may wish to be heard.
It is clear that pursuant to section 539 paragraph (b) subparagraph (iv) and subparagraph (v) of the IR Act that whether a person is joined as a party or is given the right to be heard in a proceeding are two different circumstances. Whether or not Randstad applies to be heard and whether it ought to be heard and on what conditions is a separate matter.
While I appreciate the concerns raised by PIW that making the directions orders of the kind sought by the applicant may delay the determination of the applicant’s application, in my view, those concerns are outweighed by the need, for the reasons I have given, for Randstad to be informed of the proceeding and to be informed of the transfer of calling defence involving it as contended by PIW.
For those reasons, I will make the following orders.
1. The applicant shall, by 4 pm on Friday 30 July 2021, deliver to Randstad Pty Ltd a copy of this order and a copy of:
(a) The applicant’s application in matter number B/2021/4 filed on 13 January 2021.
(b) The directions order made by Industrial Commissioner Hartigan in matter number B/2021/4 dated 16 March 2021.
(c) The draft agreed statement of facts in matter number B/20201/4 and,
(d) The respondent’s response in matter number B/2021/4 filed on 14 May 2021.
2. The applicant shall deliver the documents listed in order 1 under cover of a letter drawing the attention of Randstad Pty Ltd to the fact that the documents are relevant to a matter being mentioned in the Commission at 1 pm on Thursday 12 August 2021 and that the Commission has determined that Randstad Pty Ltd may have an interest in the matter before the Commission and may wish to be heard.
3. The documents and letter referred to in orders 1 and 2 must be served by the applicant on the respondent by 4 pm on Friday 30 July 2021.
4. The matter is listed for mention at 1 pm on 12 August 2021.
5. Should Randstad Pty Ltd wish to be heard on any matters raised in the documents delivered to it by the applicant, it is to appear at the mention at 1 pm on Thursday 12 August 2021, at which time further directions may be made as to the further conduct of the matter.