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  4. Ferris v Woodlands H.R. Pty Ltd (No. 2) - [2024] QIRC 172

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Ferris v Woodlands H.R. Pty Ltd (No. 2)[2024] QIRC 172

Ferris v Woodlands H.R. Pty Ltd (No. 2)[2024] QIRC 172

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ferris v Woodlands H.R. Pty Ltd (No. 2) [2024] QIRC 172

PARTIES:

Ferris, Timothy

(Applicant)

v

Woodlands H.R. Pty Ltd

(Respondent)

CASE NO:

B/2022/83

PROCEEDING:

Application for unpaid wages

DELIVERED ON:

18 July 2024

HEARING DATES:

28 November 2023

29 November 2023

15 January 2024

MEMBER:

Pidgeon IC

HEARD AT:

Brisbane

ORDER:

The application is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION TO RECOVER PRO RATA LONG SERVICE LEAVE – application for unpaid wages – recovery of unpaid pro rata long service leave – where the applicant worked for another employer for a period – consideration of whether there is continuity of service – consideration of whether the employer intended to avoid obligations – application dismissed

LEGISLATION AND OTHER INSTRUMENTS:

Industrial Relations Act 2016 (Qld) ss 43, 95, 132, 134, s 475(1)

CASES:

Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Wilsons Parking Australia 1992 Pty Ltd [2002] ICQ 49.

Craig Geoffrey Fox v Programmed Integrated Workforce Ltd (No. 2) [2022] QIRC 281.

Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194.

PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648.

APPEARANCES:

Mr D. Marr and Mr A. Santelises, The Australian Workers' Union of Employees, Queensland (AWU) for the Applicant.

Mr C. Camilleri, Woodlands H.R. Pty Ltd for the Respondent.

Reasons for Decision

  1. Background
  1. [1]
    Mr Timothy Ferris ('the Applicant') filed an application on 31 October 2022 pursuant to s 475 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), seeking that Woodlands H.R. Pty Ltd ('Woodlands'; 'the Respondent') pay the Applicant 14.7333 weeks' of unpaid Long Service Leave. The monetary value of the pro rata Long Service Leave sought by the Applicant is $18,813.24.
  1. [2]
    Mr Ferris has an extensive working history in connection with Woodlands. On 1 March 2022, Mr Ferris was presented with a "Certificate of Achievement" in recognition of his 17-years of dedicated service at Woodlands.
  1. [3]
    During his time working at Woodlands, Mr Ferris was employed pursuant to three different arrangements over three corresponding discrete periods. Initially, Mr Ferris was directly employed by the Respondent from March 2005 to 2007 ('the First Employment Period'). From 2007 to 7 November 2017 ('the Second Employment Period'), Mr Ferris continued to work at Woodlands but was employed by Forum-A Pty Ltd ('Forum-A'). Following the Second Employment Period, Mr Ferris was reengaged by the Respondent directly on 8 November 2017 until 2022 ('the Third Employment Period').
  2. [4]
    Mr Ferris did not undertake any other work than that performed onsite at Woodlands during his engagement with Forum-A, or during the two other employment periods.
  1. [5]
    The basis of Mr Ferris' application is that Woodlands should recognise his period of employment with Forum-A for the purposes of determining an entitlement to Long Service Leave based on continuity of employment. Mr Ferris submits that his continuity of service with Woodlands is not broken pursuant to s 134(6)(a) of the IR Act. In accordance with this provision, Mr Ferris says that his employment was interrupted or terminated by Woodlands with intent to avoid an obligation under this part, an applicable industrial instrument or contract of employment.
  1. [6]
    In the alternative, Mr Ferris says that his employment circumstances represent a "transfer of calling" for the purposes of s 132 of the IR Act which addresses continuity of service.
  1. [7]
    In respect of the Applicant's submissions that Mr Ferris had continuous service with Woodlands, the Respondent's position is that the period of time Mr Ferris was employed by Forum-A broke his continuity of service.
  1. [8]
    Further, the Respondent submits that the offer of full-time employment made to Mr Ferris on 1 November 2017 explicitly specified that Mr Ferris' length of service would recommence from zero upon his start date and that his service with Forum-A would not be recognised for the purpose of, among other things, Long Service Leave entitlements.
  1. [9]
    On the basis of the explicit terms of the offer of employment tendered to Mr Ferris in November 2017, the Respondent submits that there was no "transfer of calling".

Legal Framework

  1. [10]
    Section 95 of the IR Act states:
  1. 95
    Entitlement—employees other than seasonal employees
  1. (1)
    This section applies to an employee, other than a seasonal employee.
  1. Note—
  1. For provisions applicable to seasonal employees, see subdivisions 7 and 8.
  1. (2)
    The employee is entitled to Long Service Leave, on full pay, of—
  1. (a)
    if the employee has completed 10 years continuous service—8.6667 weeks; and
  1. (b)
    after 10 years' service, if the employee has completed at least a further 5 years continuous service—a period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years.
  1. (3)
    An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for Long Service Leave on the termination of the employee's service.
  1. (4)
    However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if—
  1. (a)
    the employee's service is terminated because of the employee's death; or
  1. (b)
    the employee terminates the service because of—
  1. (i)
    the employee's illness; or
  1. (ii)
    a domestic or other pressing necessity; or
  1. (c)
    the termination is because the employer—
  1. (i)
    dismisses the employee because of the employee's illness; or
  1. (ii)
    dismisses the employee for another reason other than the employee's conduct, capacity or performance; or
  1. (iii)
    unfairly dismisses the employee; or
  1. (d)
    the termination is because of the passing of time and—
  1. (i)
    the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service; and
  1. (ii)
    the employee was prepared to continue the employment with the employer.
  1. (5)
    Long Service Leave is exclusive of a public holiday that falls during the period of the leave.
  1. (6)
    An employee who is entitled to Long Service Leave other than under this Act is entitled to leave that is at least as favourable as the entitlement under this section.
  1. (7)
    In this section—
  1. illness includes injury, incapacity or other medical condition.
  1. proportionate payment means a payment equal to the employee's full pay for a period that represents the same proportion of 8.6667 weeks that the employee's period of continuous service bears to 10 years.
  1. [11]
    This application has been brought pursuant to s 475(1) of the IR Act, which is set out below:
  1. 475
    Power to recover unpaid wages and superannuation contribution etc.
  1. (1)
    On application by a person under section 476, the commission may order payment of the following for the period of 6 years before the date of the application—
  1. (a)
    an employee's unpaid wages;
  1. (b)
    an apprentice's unpaid tool allowance under section 137;
  1. (c)
    remuneration lost by an apprentice or trainee because the employer has contravened section 371(2);
  1. (d)
    contributions to the approved superannuation fund payable for an eligible employee that are unpaid.
  1. [12]
    The Applicant's submissions in respect of Mr Ferris' purported transfer of calling are made pursuant to s 132(1) of the IR Act, which provides:
  1. 132
    Continuity of service—transfer of calling
  1. (1)
    This section applies to a person (a transferred employee) who —
  1. (a)
    becomes an employee of an employer (the new employer) because of the transfer of a calling to the new employer from another employer (the former employer); or
  1. (b)
    is dismissed by an employer (also the former employer) before the transfer of a calling if—
  1. (i)
    is dismissed by an employer (also the former employer) before the transfer of a calling if—
  1. (ii)
    the employee—
  1. (A)
    was dismissed by the former employer within 1 month immediately before the transfer; and
  1. (B)
    is re-employed by the new employer within 3 months after the dismissal.
  1. (2)
    The transfer of the calling is taken not to break the transferred employee's continuity of service.
  1. (3)
    A period of service with the former employer, including service before the commencement, is taken to be a period of service with the new employer.
  1. (4)
    In relation to the transfer, the transferred employee is not an employee to whom part 3, division 13, subdivision 2 applies, unless an applicable industrial instrument mentioned in section 125(1)(a) provides otherwise.
  1. (5)
    In this section—
  1. dismissed includes stood down.
  1. [13]
    The Applicant's general arguments in relation to continuity of service are made in reliance of s 134 of the IR Act which relevantly provides:
  1. 134
    Continuity of service—generally
  1. …
  1. (6)
    An employee's continuity of service with an employer is not broken if—
  1. (a)
    the employee's employment is interrupted or terminated by the employer with intent to avoid an obligation under this part, an applicable industrial instrument or contract of employment; or
  1. (b)
    the employee's employment is interrupted or terminated by the employer as a direct or indirect result of an industrial dispute, and the employer re-employs the employee.

Approach to application

  1. [14]
    In order to determine whether Mr Ferris has an entitlement to pro rata Long Service Leave, I must determine whether Mr Ferris had either:
  1. (a)
    continuity of service pursuant to a transfer of calling, or
  1. (b)
    continuity of service on the basis that the Respondent interrupted or terminated his service with intent to avoid an obligation to pay Long Service Leave under the Act, an applicable industrial instrument or contract of employment.
  1. [15]
    The parties were asked to file submissions in support of their respective positions prior to the conciliation conference held on 20 March 2023. I have reviewed those submissions and it appears that, at the time of filing, Mr Ferris' argument was that his employment with Forum-A represented a "transfer of calling", thereby giving rise to continuity of service pursuant to s 132 of the IR Act. The Respondent's submissions, in each iteration, refute that there was a transfer of calling. Throughout the life of the matter, Mr Ferris' case theory expanded to include an alternative argument that the Respondent acted with intent to avoid an obligation to pay its employees' Long Service Leave.
  1. [16]
    The pre-conciliation submissions were filed on 8 March 2023[1] and 15 March 2023.[2] The parties also filed pre-hearing submissions in June[3] and August 2023.[4] The hearing was initially listed for August 2023, but due to the unavailability of witnesses, the hearing did not occur until November 2023. The matter was heard over the course of two-days in November 2023 and one-day in January 2024. The parties' later submissions refer to earlier submissions. In deciding this application, I have relied, primarily, on the parties' most recent submissions, however, when relevant, I reference the parties' earlier submissions.
  1. [17]
    As the Employment Periods the subject of this Application span 17-years, I have listed each witness who led evidence at hearing and their respective positions as they relate to Mr Ferris' employment:
  • Mr Timothy Ferris – the Applicant;
  • Mr Benjamin Haycroft ('Mr B Haycroft') – Director of Forum-A from 2009 until 2017, the Second Employment Period;
  • Mr John Elks ('Mr Elks') – Managing Director of Woodlands HR (in all relevant periods);
  • Ms Jennifer Tregenza ('Ms Tregenza') – Office Manager (or in similar administrative and clerical roles) in the employ of Woodlands HR in all relevant periods; and
  • Mr Graeme Haycroft ('Mr G Haycroft') – Director of Small Business Union Pty Ltd ('Small Business Union') and Non-Executive Director of Forum-A Pty Ltd during relevant periods.
  1. [18]
    For completeness, I will briefly address written correspondence from Mr G Haycroft received on 17 January 2024, following the evidence he led at hearing. On Wednesday 15 January 2024, Mr G Haycroft was called as a witness by the Applicant’s representative. As will be seen below, Mr G Haycroft’s evidence was, at times, vague and he claimed to have no memory of particular issues. At other times, his memory became clearer and he was able to recall specifics. On the evening of Wednesday 17 January 2024, Mr G Haycroft wrote an email for my attention. He carbon copied the Applicant’s representative and the Respondent to that correspondence. That email commenced with the following:

Attention Commissioner Pidgeon

I wish to raise two issues

  1. I appeared before you under duress on 15 January 2024 having been summonsed to do so over a matter which it appears relates to actions first taken in 2004 of which I had no personal involvement. I really had no or little idea about what this was about other than Mr John Elks had advised me that one of Woodlands former employees (a Mr Ferris) was claiming Long Service Leave. I had no idea about the circumstances or what information I was expected to hold that could help with the matter. Furthermore I was told I could not have legal representation yet I was bound to answer questions about matters from my business of nearly twenty years ago. I have nothing that I wish to remain secret or even confidential relating to my business activities at any time. However the fact that legislation allows this imposition of my privacy is a disgrace. This is a complete denial of "natural justice" and "due process". The fact that you would allow this to happen is something Commissioner I shall be reflecting upon. You may rest assured that you will be hearing from me in the fullness of time about this.
  1. [19]
    The email went on to provide several pages of text under the heading "2. The matter between Woodlands and a Mr Ferris". I did not read that section of the email and asked for the email to be placed in correspondence on the file. Mr G Haycroft is not a party to the matter, so it is wholly inappropriate for him to seek to provide written submissions via email.

Did Woodlands interrupt or terminate Mr Ferris' service with intent to avoid an obligation to pay Long Service Leave?

Applicant's submissions

  1. [20]
    The Applicant submits that "on the balance of probabilities, the Respondent has conducted a deliberate action to avoid the Applicant's entitlement to Long Service Leave and in turn, the Respondent has conducted themselves under section 132(6)(a) of the Act".[5]
  1. [21]
    The Applicant suggests that there are two key elements within s 134(6)(a) of the IR Act:
  1. a)
    that the employee's employment is interrupted or terminated by the employer; and
  1. b)
    that the interruption or termination was undertaken with the intent to avoid an obligation under this part, an applicable industrial instrument or contract of employment.
  1. [22]
    The Applicant says that the material evidence before the Commission proves that the elements within s 134(6)(a) have been satisfied and, therefore, Mr Ferris is owed the outstanding Long Service Leave.
  1. [23]
    The Applicant submits that the Commission should be satisfied on the evidence that Mr Ferris was terminated and then redeployed to a contractor known as "Forum-A Pty Ltd" and that this action interrupted his employment, depriving him of his entitlement to Long Service Leave.
  1. [24]
    The Applicant submits that the Respondent's intent to avoid the Long Service Leave obligation is evident by the engagement documents and the evidence provided via cross-examination on 28 November 2022. In particular, the Applicant submits that the Respondent utilised Forum-A to avoid their obligations in relation to employee entitlements such as Long Service Leave.
  1. [25]
    In support of this submission, the Applicant points to Exhibit TF-03.[6] TF-03 is a set of documents bearing the Forum-A heading and includes a document titled "Long Assignment Casual: HOW TO FILL OUT PAPERWORK". This document was signed by Mr Ferris on 30 March 2009 accepting the terms and conditions set out in the document. This exhibit also includes the document titled, a "Forum A Pty Ltd (sic) CWA New Employee Checklist (Casual)", and a document labelled "CWA Relevant Provisions". With regard to the document Mr Ferris signed, the Applicant points specifically to cls 1 and 2:

Schedule of entire employment conditions to be read in conjunction with the Forum A Pty Ltd (sic) CWA New Employment Checklist. These extra conditions are in addition to it.

I further declare that I understand the following:

  1. That there is no transmission of any benefit or entitlement from my previous employer and that my only entitlements are those set out in this application and the schedules below.
  2. That I have voluntarily ended my previous employment and that any or all entitlements from my previous employment have been paid to me in full.
  3. That my application will not be accepted until I have completed all of the relevant employer documentation including the WPH&S induction.
  4. The employer's representative counter signature to this schedule binds the employer to these conditions of employment.

……[7]

  1. [26]
    The Applicant submits that cls 1 and 2 reinforce the intent by the document to prevent any transfer of service from the Respondent to Forum-A. Further, the Applicant draws attention to the footer of Exhibit TF-03 which denotes a file name "WoodlandsnoLSL170309ver2".
  1. [27]
    The Applicant submits that the file name of the document "incontrovertibly shows an intent by the Respondent and Forum-A Pty Ltd to avoid the obligations under regarding Long Service Leave under the Act…"[8]
  1. [28]
    The Applicant points to the "clear negative word being 'no' and in connection with 'LSL'' and says that "it is reasonable to connect the said word of 'LSL' to Long Service Leave". Further, the Applicant highlights that the document "outlines the (sic) any 'entitlement' from the Applicant' (sic) previous employer not being transmitted or transferred to the Respondent".[9]
  1. [29]
    The Applicant further refers to the evidence of Mr G Haycroft who said:

Haycroft: So this document’s like a – essentially, your release is what I could describe it.

Santeliese: Could – based on that paragraph, could that and this whole document as a whole – could "LSL" mean no Long Service Leave?

Haycroft: Well, it fits, doesn’t it? But I don’t remember specifically, but it’s a probably a reasonable guess for you to make.[10]

  1. [30]
    The Applicant also points to Exhibit TF-05[11] which is the correspondence from Woodlands dated 1 November 2017 offering him employment in circumstances where the Forum-A agreement was due to cease operating from 31 December 2017. Specifically, on page two, Exhibit TF-05 states:

…

In addition, Woodlands will not recognise your service with Forum A Pty Ltd (sic) for the purposes of your entitlement to Long Service Leave as there has not been a transfer of calling between Forum A Pty Ltd (sic) and Woodlands HR under the Industrial Relations Act 2016 (Qld). Therefore your service for the purpose of Long Service Leave will start from zero on the Commencement Date.[12]

  1. [31]
    The Applicant says that the above "is an extension of the Respondent attempting to avoid their liability under the Act in providing Long Service Leave".[13] The Applicant says that this is expressed by the "Respondent 'not recognising' the service from Forum A Pty Ltd (sic) and not accepting that there had been a 'transfer of calling' – key elements in enabling the Applicant to be entitled to Long Service Leave under the Act".[14]
  1. [32]
    The Applicant says that the Respondent's statement in the correspondence above that it would not recognise the service from Forum-A is contradicted by its issuing to Mr Ferris a certificate marking his 17-years of service to the Respondent on 1 March 2022. The Applicant says that in issuing the certificate, the Respondent has "repudiated their own clause in the document provided to the Applicant".[15]
  1. [33]
    The Applicant submits that the intent of engaging Forum-A was for the Respondent to avoid their obligations in relation to employee entitlements such as Long Service Leave. The Applicant says that this is evidenced in the documents and in the evidence given by the Respondent's witnesses.

Evidence of Mr Elks

  1. [34]
    Mr Elks is the Managing Director of Woodlands.
  1. [35]
    Mr Elks gave evidence that Forum-A was engaged by the Respondent as it did not have the infrastructure to support the staff via a Human Resources Manager. Mr Elks said that Woodlands was in an expanding phase and needed additional people to work and he did not have anyone who was a HR expert.[16] Mr Elks said that he needed to get additional people into the organisation and he thought that engaging Small Business Union and Forum-A was "the best way to achieve that".[17]
  1. [36]
    Mr Elks said that he was not a director of the Small Business Union[18] or Forum-A.[19] Mr Elks said that he had been Managing Director of Woodlands for nearly 40-years and, when asked, he agreed that he made decisions in relation to the engagement of entities such as Forum-A.[20]
  1. [37]
    Mr Elks' evidence was that Woodlands had a commercial arrangement with Forum-A based on a "service agreement".[21] Mr Elks said that Forum-A set the hourly rates in the service agreement and that Forum-A paid the labourers employed by it.
  1. [38]
    Mr Elks' affidavit of evidence in this matter stated that "the business was continually expanding and needed more staff which an external H.R. expertise company could offer".[22] However, the Applicant says that Mr Elks went on to provide the following reasons for engaging Forum-A Pty Ltd at hearing, including:
  • because they had an "agreement" and additional expertise;[23]
  • to engage a supply of labour;[24]
  • to manage all the wage entitlements on the Respondent's behalf;[25] and
  • that the staff wanted to work additional hours and as the Respondent did not want to bear the expense of overtime, the agreement provided that staff could work additional hours without the consequence of the same.[26]
  1. [39]
    It was put to Mr Elks that the intent of engaging Forum-A was to reduce the cost of labour for the Respondent. Mr Elks said that in entering the agreement he didn't believe anyone missed out on entitlements and said that he couldn't believe it was the case that the labour hire agreement led to reduced costs. Mr Elks said that cost reduction was not the reason he entered into the labour hire arrangement.[27] Mr Elks believed that entitlements were captured in the "all-up rate" paid to workers under the labour hire arrangement although he said he did not know how it was derived.[28] Mr Elks also said that Woodlands paid Forum-A a rate of commission in the amount of about 24% above the cost of staff, and agreed that this was an additional cost incurred by the Respondent in engaging Forum-A.[29]
  1. [40]
    Mr Elks was asked why Mr Ferris and other staff were maintained on long-term casual-type employment.[30] His evidence was that in the primary production industry, there is a requirement to have employees present 24-hours a day, seven-days a week and that this was "just the way we operated the business".[31]
  1. [41]
    Mr Elks' evidence appeared to indicate that one motivating factor for moving to the Forum-A agreement was the existence of the CWA under the "whole WorkChoice (sic) arrangement" and the flexibility to employ staff to work additional hours without attracting overtime rates.[32]
  1. [42]
    The Applicant submits that, on the balance of probabilities, the intent was to reduce costs for the Respondent. The Applicant submits that this was confirmed by Mr Elks when he stated:

SANTELISES: Yes. So, Mr Elks, my question is why was Mr Ferris transferred to Forum-A when he was already engaged by the respondent?

ELKS: Because we – we – I made a decision that we would transfer these people to Forum-A so that they could handle all the payroll, all the – you know, associated things involved with that.

SANTELISES: Yep. A reduced cost to the respondent; is that correct?

ELKS: Well, one would hope all of the above.

SANTELISES: Yes. So I put it to you the reason why you engaged Forum-A was to reduce the cost of actual labour and entitlements?

ELKS: No. Don't agree with that.[33]

  1. [43]
    The Applicant points to other evidence given by Mr Elks and says that it confirms an intention to avoid any obligation regarding entitlements such as Long Service Leave and the intent of the Respondent not to deal or manage entitlements of their employees and avoid the expense of these things:

SANTELISES: So to your recollection what were the key enticements for engaging Forum-A for that instrument?

ELKS: Well, as I said, having the ability – given the amount of employees that he had in his business, we had access to those people, which we didn’t have before. We didn’t have the expertise that, you know, was required. We didn’t have the people to go out and try and hire them. And, as I said, didn’t have a HR manager. All those things.

SANTELISES: Thank you. Well, just going back to the instrument. That’s very good. And I’ve heard that – you said that before. But, you know, we’re looking at the instrument that you said to us all. That was something that you – that enticed you. So what was within that document that enticed you to come over to Forum-A and engage them?

ELKS: Well, that – that was part of the – his offer. There was nothing – nothing outside of what I just said.

SANTELISES: All right. So I’ll pivot away from that. In terms of the instrument and them engaging – so you were expanding and we’ve accepted that. So it was enticing for you because they would manage all the wage entitlements on your behalf; is that correct?

ELKS: Correct.

SANTELISES: Yeah. And did you also go further and say there’s the reduced costs of engaging those staff by Forum-A; is that correct?

ELKS: No, I don’t believe so.[34]

  1. [44]
    The Applicant also refers to evidence given by Mr Elks regarding the reasons staff who were employed by Woodlands were not continued in that employment with extra staff employed by Forum-A:

I think, put very simply, I was approached by a number of employees that wanted to work additional hours and the reason why we couldn’t work additional hours meant that we would have attracted overtime. So, therefore, with the agreement, you could work normal hours or additional hours if you wanted to. There was a scope there and everyone wanted to do that that approached me initially, and that – that’s how it came about.[35]

  1. [45]
    The Applicant says that the above evidence shows that, on the balance of probabilities, the Respondent had a clear intention to avoid their obligations in relation to entitlements, such as Long Service Leave, "either due to cost or they had no appetite in managing the same".[36] Further, the Applicant says that "Regardless, the Respondent has still 'avoided' that obligation and as such, the Applicant submits that section 134 (6)(a) of the Act has been satisfied on the said evidence alone".[37]
  1. [46]
    The Applicant points to Ms Tregenza's evidence regarding the purpose of outsourcing to Forum-A Pty Ltd:

CAMILLERI: In the affidavit, you said in 2009 there was an operational change to business. What was the change?

TREGENZA: It was to outsource the payroll. So we had a company with more experience to deal with the logistics and industrial relations that may occur with that.

CAMILLERI: Thank you. What happened to the employees that were terminated because of the operational change?

TREGENZA: They were offered new roles under the agreement with Forum-A.

CAMILLERI: Thank you. Did you process the payrolls of the employees that were terminated?

TREGENZA: Yes.[38]

  1. [47]
    The Applicant points to the employment contract which formed the basis of Mr Ferris' reemployment with Woodlands. That contract states that the Respondent will not recognise Mr Ferris' service with Forum-A "for the purposes of your entitlement to Long Service Leave".[39] The Respondent says that, on the balance of probabilities, this demonstrates the Respondent's intention to avoid its obligations under the IR Act.

Link between Woodlands, Small Business Union and Forum-A

  1. [48]
    The Applicant believes the link between the Small Business Union and Forum-A should be highlighted to the Commission.[40]
  1. [49]
    The Applicant refers to the document that was executed by the Applicant upon employment with Forum-A.[41] The Applicant points out that the bottom of that document provides the following:

This document which includes variations in previous versions and associated documents and fundamental principles therein are the property of the Small Business Union (SBU) ...

('emphasis added')[42]

  1. [50]
    In addition to this, the Applicant points to the evidence of Mr B Haycroft, who stated that Mr G Haycroft was a director of Forum-A until 2012, prior to his time as a non-executive director of Forum-A. The Applicant submits that the connection between Forum-A and Small Business Union is valid considering Mr G Haycroft was managing the Small Business Union and was a non-executive director of Forum-A. The Applicant submits that this means "there is a strong and formal connection between both entities…"[43]
  1. [51]
    The Applicant further refers to correspondence which provides the following:

Mr GRAEME HAYCROFT

Woodlands HR Pty Ltd (sic)

C/ Small Business Union Pty Ltd

PO Box 1023

Caloundra QLD 4551

('Emphasis added')[44]

  1. [52]
    The Applicant says that the "'C/' carries a common meaning of 'in the care of'" and this further emphasises the strong connection between the Respondent, Small Business Union and Forum-A.[45] The Applicant submits that, on the balance of probabilities, the connection reinforces the position that there was a clear intent on the part of the Respondent to avoid their obligations regarding Long Service Leave and/or that there was a transfer of calling between the two entities.

Evidence of Mr B Haycroft

  1. [53]
    The Applicant says that "Mr Benjamin Haycroft's evidence reinforced that the aim of Forum A (sic) was to provide services as efficiently as possible, and at a potentially lesser cost...".[46]
  1. [54]
    Mr B Haycroft was called to give evidence by the Applicant. Mr B Haycroft said that he was not a director of Forum-A at the time Mr Ferris was engaged by that entity. Mr Ferris commenced employment with Forum-A in 2009 and Mr B Haycroft became a director of Forum-A in 2012.[47]
  1. [55]
    Mr B Haycroft recalled that an application had been made to terminate the CWA but that he could not recall upon what grounds that application had been made. Mr Haycroft said that his expertise in the business related to Workplace Health and Safety rather than Industrial Relations.[48]
  1. [56]
    Mr B Haycroft recalled that Forum-A had around 2000 employees in total and guessed that about 60 or 70 of those employees worked at Woodlands via the labour hire arrangement.[49]
  1. [57]
    Mr Haycroft said that he did not know why Woodlands had chosen to engage Forum-A for labour hire.[50]
  1. [58]
    Mr B Haycroft agreed that there was a commercial benefit to both parties entering into the labour hire agreement.[51] Mr Haycroft was asked about the nature of the "commercial benefit" and said that the provision of labour through the labour hire agreement would not necessarily need to be at a lesser cost than if the workers were directly engaged.[52]
  1. [59]
    Mr B Haycroft gave evidence that he joined the board of Forum-A in 2012 after Mr G Haycroft left the board and agreed that Mr G Haycroft would have understood the commercial relationship between Woodlands and Forum-A better than he did.[53]
  1. [60]
    Mr B Haycroft's evidence is that there was no common ownership beneficiaries or directors between Forum-A and Woodlands HR.[54]
  1. [61]
    Mr B Haycroft said that the majority of Forum-A's income was derived from labour hire services.[55]

Evidence of Mr G Haycroft

  1. [62]
    Mr G Haycroft was called by the Applicant. With regard to his role with Small Business Union, Mr Haycroft noted that this was "over 20 years ago" and stated "I'm an old man and my memory's not that good, so I don't remember".[56] Mr G Haycroft said he did not recall what services were offered by Small Business Union.[57] Mr G Haycroft said he may have been engaged by Woodlands to provide services but that he had no recollection of being engaged.[58]
  1. [63]
    Mr G Haycroft said that he knows Mr Elks and that he had not seen him since he retired 10 or 12 years ago but that he spoke to him a couple of months ago.[59] Mr G Haycroft said that he can remember things from the recent past and that when he received the "summons" to attend for this matter, he saw Mr Elks' name and they spoke.[60] Mr G Haycroft said that he asked Mr Elks what the matter was about and that Mr Elks had told him that he didn't really know.[61] Mr G Haycroft could not recall anything else of consequence being discussed during that conversation.[62]
  1. [64]
    I asked Mr G Haycroft what Forum-A was. Mr G Haycroft said, "Forum A was a company, I – I think".[63] Mr G Haycroft was asked if he was a board member of Forum-A and replied, "You'll have to check the records".[64]
  1. [65]
    Despite earlier having no recollection regarding Small Business Union, Mr G Haycroft later said that Small Business Union was an entity which is to lodge workplace agreements for clients and that Forum-A was a "totally different structure" and an "employer of people".[65] Mr G Haycroft said that Forum-A was "effectively a labour hire business".[66]
  1. [66]
    Mr G Haycroft was asked why a client would engage a company like Forum-A. Mr G Haycroft suggested that was a question better directed to Mr Elks who would probably have a better memory. Mr G Haycroft was pressed for a reason why he himself thought the Respondent would want to engage Forum-A, to which he answered, "Probably because he thought I was pretty. I don't know. That's a long time ago. Right".[67]
  1. [67]
    Mr G Haycroft said he was unable to provide a reason why the Respondent engaged Forum-A. When asked more generally why any company would engage Forum-A, Mr Haycroft suggested that they were "…Perhaps mesmerised by my charisma".[68]
  1. [68]
    Mr G Haycroft was asked how the "all up rate" was arrived at. His evidence was that at the time there were guidelines on "how those things were to be valued" and that there was "an agreed value given by the Office of the Employment Advocate for all those things".[69] Mr G Haycroft said that "actuarial valuations" were done and that there was a published list of values of entitlements. Mr G Haycroft said that he had been involved in the development of a calculator given to the Employment Advocate so that "there could be a uniform valuation in the system". Mr G Haycroft said that if Long Service Leave was included in the rolled up rate, he assumed it would have been subject to the rules of the AWA.[70]
  1. [69]
    Mr G Haycroft said that Forum-A had "a couple of hundred clients"[71] and that the processes undertaken with Woodlands would have been the same process undertaken with the other clients. Mr G Haycroft said that at the time, a non-compliant AWA would have been "knocked back".[72] Mr G Haycroft was confident that Long Service Leave was being paid in the fortnightly payments as part of the AWA approved by the employment advocate.[73]
  1. [70]
    Mr G Haycroft said that he was never a director of Woodlands HR and that Mr Elks was never a director of Small Business Union.[74]

Applicability of the Australian Workplace Agreement (AWA) and the Collective Workplace Agreement (CWA)

  1. [71]
    At the opening of the hearing, I asked the Applicant's representative to provide submissions about the AWA and CWA Mr Ferris was employed under.
  1. [72]
    With regard to the AWA "rolled up rates”, the Applicant submits that he did not accumulate any Long Service Leave during the period he was employed under the AWA and there is no evidence of Long Service Leave paid via his wages, and as such the "rolled up rate" does not apply to reduce the length of Mr Ferris' service.
  1. [73]
    Despite the mention of a "rolled up rate", the Applicant says that the Respondent has not provided any evidence in relation to what the "rolled up rate" is and how the Respondent compensated employees for the various entitlements that were surrendered as a result of the AWA. The Applicant says that the onus is on the Respondent to have "some kind of record from Forum-A Pty Ltd" as the Respondent engaged Forum-A.
  1. [74]
    The Applicant submits that Schedule 3 of the Collective Workplace Agreement refers to the Long Service Leave contained in the Award at that time. The Applicant submits that "as it does not exempt the legislative entitlement and at the time, it was contained in the Industrial Relations Act 1999 (Qld) and now, the Industrial Relations Act 2016 (Qld)".
  1. [75]
    Further, the Applicant highlights the following clause in the CWA:

EXCLUDED AWARD CONDITIONS

As this document replaces all conditions and stands alone, as a matter of law, we advise that all allowable award conditions for any award that specifically applies to your employment as specified in Part 10, Division 2, Subsection 513 of the Act are expressly excluded from applying to this Agreement. Those matters that are pertinent to your employment are covered elsewhere in this agreement and other common law documentation. Award conditions excluded by this Agreement include:

…

(n) Employee entitlements to Long Service Leave;

…

('emphasis added')[75]

  1. [76]
    The Applicant says that, pursuant to this clause in the CWA, the Long Service Leave entitlement is excluded, however, the entitlement in the IR Act should have applied to the Applicant.
  1. [77]
    The Applicant says that s 43(1) of the IR Act provides that the section applies to all employees other than seasonal employees. In addition, the Applicant says that s 43(5) of the IR Act provides that "An employee who is entitled to Long Service Leave elsewhere than under this Act, is entitled to leave that is at least as favourable as the entitlement under this section".[76]
  1. [78]
    With reference to Mr Ferris' final payslip from Forum-A,[77] the Applicant says that as Forum-A is a federal employer, reg 3.46(g) of the Fair Work Regulations 2009 (Cth) is applicable and provides: "any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; (sic)".[78] The Applicant says that Forum-A was required to comply with the regulation and that a review of the final payslip shows that Mr Ferris was not paid any Long Service Leave due to the absence of it on the payslip. The Applicant says that on the balance of probabilities, Forum-A did not "pay out" any Long Service Leave to the Applicant and that this entitlement remains outstanding and owed to Mr Ferris.
  1. [79]
    The Applicant says that the AWA and CWA do not displace the Applicant's entitlement to Long Service Leave under the IR Act and no Long Service Leave entitlement has been paid out by Forum-A.
  1. [80]
    The Respondent reiterates its position that Forum-A's CWA operated to the exclusion of any and all other industrial agreements, Awards or State employment legislative provisions except those dealing with Occupational Health and Safety and Workers' Compensation.[79] The Respondent says that several entitlements, which would be, ordinarily, owed to an employee, including Long Service Leave, were excluded by operation of the CWA.
  1. [81]
    The Respondent submits that due to the unfavourable terms of the CWA and the legally valid exclusion of such entitlements, United Voice raised a dispute with Forum-A and subsequently, an agreement was reached between Forum-A and United Voice to terminate the CWA.[80]
  1. [82]
    The Respondent says that if the Commission were to accept that a Long Service Leave entitlement arose out of the CWA, the entitlement would only be payable by the Applicant's correct employer at the time the Applicant ceased his employment.[81] The Respondent submits that the Applicant's correct employer for this purpose would have been Forum-A and not the Respondent. The Respondent says that the Long Service Leave requirements were legally owed by Forum-A and they cannot be transferred to the Respondent because:
  1. There was no formal or informal agreement between Forum-A and the Respondent to "transfer" the Applicant's Second Employment Period to the Respondent; and
  2. Mr Ferris conceded that he was aware that during the Second Employment Period, any accrued entitlement to Long Service Leave at the end of his employment was to be paid by Forum-A;[82] and
  3. There was no "connection" between Forum-A and the Respondent as they were separate entities engaged in providing separate business services. The only "connection" between Forum-A and the Respondent that existed was the commercial labour hire arrangement which was confirmed by Mr Elks.[83]

Respondent's submissions

  1. [83]
    The Respondent denies the assertion made by the Applicant that it intended to avoid its obligations with respect to Long Service Leave.
  1. [84]
    The Respondent says that the Applicant's representative has failed to particularise how the Respondent intended to avoid its Long Service Leave obligations.
  1. [85]
    The Respondent points to Ms Tregenza's evidence that Long Service Leave was paid out to the terminated employees based on their minimum period of continuous service. Ms Tregenza's evidence was that anyone who had more than seven years' service upon the date of the changeover was paid a Long Service Leave entitlement.[84]
  1. [86]
    With regard to the assertion that the Respondent intended to avoid its Long Service Leave obligations to Mr Ferris, the Respondent says that Mr Ferris was not eligible to a Long Service Leave payment because he had not completed the minimum period of continuous service with Woodlands prior to termination and the commencement of employment with Forum-A. Further, the Respondent says that it made Long Service Leave payments to those who were eligible.
  1. [87]
    The Respondent says the Applicant's submissions about the document that includes the phrase "Woodlandsnolsl" are absurd. The Respondent points to its previous submission on this point:

The Applicant's contention and emphasis to the phrase "WoodlandnoLsl" on the document is irrelevant. This was an internal working document of Forum A (sic) relating to an employee engaged under a CWA that expressly and legally excluded Long Service Leave. The Applicant concedes the CWA covered his employment. For the Applicant's Representative to assert that it can be inferred that there was an intention to avoid an obligation, which Forum A (sic) had legally entered into a binding Agreement approved by the Australian Industrial Relations Commission in accordance with law to remove and otherwise compensate, is quite frankly absurd.[85]

  1. [88]
    The Respondent also notes that the terminology "WoodlandsnoLsl" was not raised with any of the key witnesses: Mr Elks, Ms Tregenza or Mr B Haycroft.
  1. [89]
    The Respondent contends that the Applicant has not made out its allegation that the engagement of Mr Ferris with Forum-A was undertaken with an intent to avoid an obligation to pay Long Service Leave.
  1. [90]
    The Respondent notes that in its closing submissions, the Applicant conceded that the purpose of the Respondent engaging with Forum-A was to reduce its overall costs.[86] The Respondent says it goes without saying that in the course of operating a business, it is quite common for businesses to avoid unnecessary capital expenditure, improve flexibility and reduce costs.[87] The Respondent says it is absurd to assert that the Respondent intended to avoid its Long Service Leave obligations because its board of directors made a decision to reduce costs by outsourcing work.[88]
  2. [91]
    With regard to the offer of employment discussed at [30] above, the Respondent says that the Applicant has conceded that during his second employment period with Forum-A, any accrued entitlement to Long Service Leave at the end of his employment was to be paid by Forum-A.[89]
  1. [92]
    The Respondent says that the submissions made by the Applicant regarding the relationship between the Respondent, Small Business Union and Forum-A are irrelevant to the proceeding.

Consideration

  1. [93]
    The evidence leads me to a conclusion that Woodlands made a decision to enter into an arrangement with Forum-A for the provision of labour for two dominant reasons.
  1. [94]
    One reason the Respondent entered into this arrangement was that Woodlands and some of its employees were looking for a way to maximise their earning capacity in circumstances where the Woodlands employment arrangements or policies did not allow for additional hours to be worked if those hours would attract overtime. It appears that, under the CWA, Forum-A workers who wanted to work additional hours than they were contracted to perform were entitled to do so. A number of things may be said about that arrangement and the context which enabled that to occur at the relevant time, but for the purposes of deciding this Application, it would be unhelpful to dwell on that. The focus of this evidence was on the ability of employees to access overtime or undertake additional hours, which is not a question before me.
  1. [95]
    The other reason is that Woodlands made a business decision to move to a labour hire arrangement on the basis that it was a growing business and did not have an internal HR function. It appears that a decision was made that all employees would be engaged on this basis rather than those already employed with Woodlands remaining directly employed and additional or new staff being engaged through Forum-A.
  1. [96]
    I also note Ms Tregenza's evidence that:
  1. 5.
    In or around 2009, there was an operational change to Woodlands where the following occurred:
  1. a)
    To streamline the HR section of the business; and
  1. b)
    As the Company was growing, it was decided that it would be beneficial to outsource HR, to an entity who could manage the complex nature of these requirements.
  1. 6.
    Due to the operational changes to Woodlands, I processed all eligible entitlements owed to employees that were being terminated by Woodlands in or around March 2009. This included payment for Long Service Leave entitlement, where any employee that had 7 years of service with Woodlands was paid Long Service Leave.[90]
  1. [97]
    I accept that the decision was made on the basis of efficiencies Woodlands thought could be gained through not having responsibility for this aspect or function of managing the business. This was articulated by Mr Elks' evidence that Woodlands did not have the internal human resources capacity to go out in search of the additional employees needed and that Woodlands made a choice to outsource the human resources function and staffing. I accept that a motivation for this may have been to reduce the costs to the business, however, I am unwilling to determine, on the balance of probabilities, that the decision to move to the labour hire arrangement was made for the purpose or with the intent of avoiding an obligation to pay Long Service Leave.
  1. [98]
    Woodlands had a pre-existing business arrangement with Small Business Union. Mr G Haycroft, Director of Small Business Union filed the Australian Workplace Agreement between Woodlands and Mr Ferris. The Approval Notice of that agreement was sent to Mr Haycroft in his role as a service provider to Woodlands.[91] There is also evidence before the Commission in the form of invoices to Woodlands from Haycroft Workplace Solutions for the purposes of "Advice provided by Small Business Union".[92] There is also an invoice dated 1 October 2007 for the amount of $357.50 for "Consultancy and Lodgement of the fairness test for the following employees…".[93] This leads me to the conclusion that Small Business Union was engaged by Woodlands to provide services such as drafting, filing and confirming approval of Australian Workplace Agreements for employees of Woodlands and potentially the provision of other advices related to human resources and industrial relations matters. This is consistent with the evidence of Mr G Haycroft about the activities of Small Business Union.
  1. [99]
    I understand the argument being made by the Applicant involves a consideration of the Forum-A document and a reading of the name of that document as set out in the footer, "nolsl…." to mean that the employment contract involved no payment of Long Service Leave. I accept that, on the balance of probabilities, that document was so named because employees who were employed pursuant to it were not accumulating Long Service Leave according to the content of the CWA. However, as Woodlands was not Mr Ferris' employer under that agreement, I am unable to conclude that this document evinces an avoidance of the obligation to pay Long Service Leave by Woodlands. It may be argued that the name of the document demonstrates an intent of Forum-A to not pay Long Service Leave, however this is not the question before me.
  1. [100]
    With regard to the Applicant's argument considered above from [74]–[79], I accept the Respondent's submission that, to the extent there is any question about the content of the CWA that formed the basis of employment with Forum-A, this is a matter for Forum-A, and not Woodlands. Further, if there are amounts outstanding following the conclusion of the Forum-A period of employment under the labour hire agreement, this is a matter for Forum-A and not Woodlands.
  2. [101]
    The Applicant contends that the letter offering Mr Ferris employment with Woodlands following the conclusion of the labour hire arrangement with Forum-A is evidence of an intention to avoid an obligation to pay Long Service Leave. I disagree that the correspondence is evidence of an intention to avoid an obligation to pay Long Service Leave, as Woodlands communicates an expectation that Forum-A will pay any entitlements owed to Mr Ferris. Further, the employment arrangement entered into by Mr Ferris with Woodlands following the conclusion of the Forum-A labour hire arrangement was on the basis that Long Service Leave would be paid in accordance with the relevant legislation.[94] I understand that the letter informs Mr Ferris that there has not been a transfer of calling and that his service with Forum-A would not be accepted for the purposes of an entitlement to Long Service Leave. This is simply a statement of the understanding of Woodlands regarding the situation. I do not accept that this statement is demonstrative of an intent to avoid an obligation to pay Long Service Leave.
  1. [102]
    I understand that the Applicant seeks to draw a direct management or ownership connection between Woodlands, Small Business Union and Forum-A. On the evidence before me, I am unable to draw any nexus between Woodlands and Forum-A beyond the commercial labour hire arrangement that existed between the two entities. I have considered the content of the Statutory Declaration of Mr B Haycroft,[95] and the evidence he gave before the Commission. Mr B Haycroft's evidence, which I accept, was that Forum-A provided staff to Woodlands from March 2009 to November 2017 under the labour hire service agreement and that there is no common ownership, beneficiaries, or directors of Forum-A and Woodlands.
  1. [103]
    Given the evidence before the Commission, I am not satisfied that on the balance of probabilities, Woodlands interrupted or terminated Mr Ferris’ employment with intent to avoid an obligation to pay Long Service Leave when it entered into the labour hire arrangement with Forum-A. The Applicant has not demonstrated that there was, as submitted, collusion between "the three Haycroft entities" or the "Haycroft triarchy" to "form a sinister and unlawful pact to disrupt the applicant's service and subsequently avoid their obligations to pay his Long Service Leave…".[96]
  1. [104]
    Therefore, given the nature of Mr Ferris' employment over the relevant period, he does not have continuity of service for the purpose of eligibility to Long Service Leave under the relevant section of the IR Act.

Does Mr Ferris have continuity of service pursuant to s 132 – Transfer of calling?

Applicant's submissions

  1. [105]
    The Applicant says that in consideration of s 132 of the IR Act, Mr Ferris has continuity of service giving rise to an entitlement for Long Service Leave. The Applicant argues that Mr Ferris' engagement with Forum-A was a "transfer of calling".
  1. [106]
    The Applicant points to the principles outlined in Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Wilsons Parking Australia 1992 Pty Ltd ('Wilsons').[97] This case involved a parking attendant who had been employed at the same multi-story car park in Brisbane for nearly 12-years and during that time, the employee was engaged by four different companies. The employee's union made a claim for Long Service Leave. In Wilsons, the Court found that there had been a transfer of calling under s 69(1) of the Industrial Relations Act 1999 (Qld), since repealed, and the employer was ordered to pay the outstanding Long Service Leave.
  1. [107]
    The Applicant says that in consideration of Wilsons, the facts of the case are analogous to the Applicant's matter and employment history. To reinforce this, the Applicant refers to the recognition of 17-years of service[98] and Mr Elk's evidence that Mr Ferris worked on-site for 17-years.[99] The Applicant notes that there is no denial that the Applicant has completed extensive service with the Respondent.
  1. [108]
    The Applicant also refers to a decision of Deputy President Merrell, namely, Craig Geoffrey Fox v Programmed Integrated Workforce Ltd (No. 2).[100] The Applicant says it acknowledges that the Commission was guided by the High Court case of Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd ('Gribbles')[101] and, in particular, the principles to consider regarding transfer of calling, which the Commission referred to:
  • to be a 'successor', it is not enough that the new employer pursues the same kind of business activity as the old employer;
  • what was meant by the word 'business' in this context focuses upon succession, assignment and transmission to or of a business which is identified as the business of an employer which necessarily directs attention to what it is that the former employer had which is to be described as the ‘business’ of that employer;
  • the 'business' of an employer may be constituted by a number of different assets, both tangible and intangible, that are used in the particular pursuit, whether of profit, if the 'business' is a commercial enterprise;
  • in the case of a commercial enterprise, identifying the employer’s 'business' will usually require identification both of the particular activity that is pursued and of the tangible and intangible assets that are used in that pursuit;
  • the 'business' of an employer will be identified as the assets that the employer uses in the pursuit of the particular activity and it is the assets used in that way that can be assigned or transmitted and it is to the assets used in that way that an employer can be a successor;
  • the new employer may be a successor, assignee or transmittee to or of the business, or part of the business, of an employer who was a party to the relevant industrial dispute if the new employer, having the beneficial use of assets which the former employer used in the relevant pursuit, uses those assets in the same or a similar pursuit; and
  • whether the new employer is a successor, assignee or transmittee, will require examination of whether what the new employer has can be described as a part of the former employer’s business.[102]
  1. [109]
    The Applicant says that in consideration of the above factors, the Respondent has been a "successor" on the basis that Forum-A has transferred employees, such as Mr Ferris who utilised the assets on Forum-A's behalf to create profit via their labour and thereafter doing the same for the Respondent.
  1. [110]
    The Applicant turns to the evidence of Mr Elks and Ms Tragenza regarding the transfer of employees to Forum-A. The Applicant notes that Mr Elks agreed that the arrangement was "enticing" because Forum-A would manage all wage entitlements on behalf of the Respondent.[103] The Applicant further notes Ms Tragenza's evidence that Forum-A received a profit for its services by way of a commission or fee for managing the arrangement and that this was paid in addition to the employee's base rate.[104] The Applicant says that on the basis of this evidence, Gribbles has been satisfied and there was a transfer of calling under s 132 of the IR Act.

Respondent's submissions

  1. [111]
    The Respondent denies that it was Mr Ferris' employer during the Second Engagement Period in circumstances where the Applicant was employed with Forum-A at the relevant time. The Respondent also denies that there was a "transfer of calling" between Forum-A and the Respondent for the purposes of s 132 of the IR Act. As stated above, the Respondent says that if it is found that Mr Ferris is eligible for Long Service Leave, it is Forum-A who owes the payment, not the Respondent.
  1. [112]
    In response to the Applicant's submissions regarding the Wilsons case, the Respondent notes that in Wilson,[105]President Hall referred to the High Court decision of PP Consultants Pty Ltd v Finance Sector Union of Australia[106]in order to determine whether there was a "transfer of calling". The test for a "transfer of calling" was set out in the Respondent's submissions as follows:

As a general rule, the question whether a non-government employer who has taken over the commercial activities of another non- government employer has succeeded to the business or part of the business of that other employer will require the identification or characterisation of the business or the relevant part of the business of the first employer, as a first step. The second step is the identification of the character of the transferred business activities in the hands of the new employer. The final step is to compare the two. If, in substance, they bear the same character, then it will usually be the case that the new employer has succeeded to the business or part of the business of the previous employer.

(emphasis added by the Respondent)[107]

  1. [113]
    The Respondent goes on to note that President Hall found in favour of the Applicant because each business was successive as they took over the leased carpark where the employee worked; and each business engaged in the same service (i.e. car parks) and provided the same type of service.[108]
  1. [114]
    The Respondent reiterates its position that the Wilson case does not apply on the facts of the application before me for determination, on the basis that:
  1. 25.1
    the Respondent’s calling is characterised and identified as the provision of poultry farming; and
  1. 25.2
    Forum A’s (sic) calling is characterised and identified as the provision of providing labour to industries under a contract for profit; and
  1. 25.3
    no similarity in businesses exists between the character of Forum A (sic) and the Respondent.[109]

Consideration

Was there a transfer of calling?

  1. [115]
    I am not satisfied that there has been a transfer of calling for the purposes of the IR Act. With regard to the authorities cited by the parties above, Forum-A was undertaking a labour hire and industrial relations services business. Woodlands is in the business of poultry farming. This is not a circumstance where Forum-A was undertaking a farming business which Woodlands then took over, giving rise to a transfer of calling.
  1. [116]
    Section 132 requires that Mr Ferris was a "transferred employee" who became such because of the transfer of a calling to the new employer from the former employer. This is not what occurred. Mr Ferris entered the employ of Woodlands under his new contract as a result of the CWA being terminated and Woodlands ceasing its labour hire arrangement with Forum-A. Woodlands never stopped operating the farm, as demonstrated by Mr Elks' evidence that he has been the Managing Director of Woodlands for 40-years.
  1. [117]
    On 2 March 2017, Mr Ferris received correspondence from the CEO of Forum-A informing him that the Collective Workplace Agreement he was employed under would be terminated effective 1 January 2018. The letter informed him that the parties had agreed to a "timetable of steps to be taken by Forum-A to facilitate the transition to modern award conditions in the period leading up to the termination of the Collective Workplace Agreement".[110]
  1. [118]
    On 7 November 2017, Mr Ferris received correspondence from Ms Kathy Knott, Workplace Partner of Forum-A informing him that "effective close of business Tuesday 14 November 2017, our hire arrangement to provide staff at Woodlands (Host Employer) will cease".[111]
  1. [119]
    The letter informed Mr Ferris that "due to the nature of labour hire employment, we do not control the duration of work assignments. Work assignments are fully dependent upon the operational requirements, and at the discretion of, our clients".[112] The letter informed Mr Ferris that there may be an opportunity for direct employment through Woodlands or with a different service provider of Woodlands' choice. Mr Ferris was also informed that should he choose not to continue his engagement with Woodlands as the Host Employer, Forum-A would be happy to continue to employ him and would endeavour to place him with another client if a suitable assignment became available.
  1. [120]
    Woodlands sent Mr Ferris an Offer of Employment on 1 November 2017.[113] The letter informed Mr Ferris that Forum-A would cease to provide labour to Woodlands under the labour hire arrangement from 14 November 2017 and offered Mr Ferris full-time employment in the position of Weighbridge Coordinator. The letter advised Mr Ferris that if he accepted the offer of employment, Woodlands HR would not recognise his service with Forum-A for the purposes of annual leave; redundancy; minimum period of employment; and notice of termination. Further, the letter informed Mr Ferris that:

…

In addition, Woodlands will not recognise your service with Forum A Pty Ltd (sic) for the purposes of your entitlement to Long Service Leave as there has not been a transfer of calling between Forum A Pty Ltd (sic) and Woodlands HR under the Industrial Relations Act 2016 (Qld). Therefore your service for the purpose of Long Service Leave will start from zero on the Commencement Date.

Any entitlement that you have to Long Service Leave, or pro-rata (sic) Long Service Leave, which accrued during your employment with Forum A Pty Ltd (sic) remain the liability of Forum A Pty Ltd (sic).[114]

  1. [121]
    Mr Ferris signed a new contract of employment to commence the Third Employment Period. That contract stipulated the circumstances under which he was being permanently employed by Woodlands. Mr Ferris also recognised that his service with Forum-A was not being recognised by Woodlands and that any entitlements he had to Long Service Leave resulting from his employment with Forum-A were to be paid by Forum-A.[115] A finding that there was a transfer of calling pursuant to the legislation would displace the content of the contract. However, I do not accept that there has been a transfer of calling.
  1. [122]
    To the extent that any Long Service Leave payment was owing to Mr Ferris arising from his period of employment with Forum-A, the Second Employment Period, I am satisfied that any such amount would be owed to him by Forum-A as they were the correct employer during the relevant period, and not Woodlands.
  1. [123]
    I understand that Mr Ferris is in possession of a certificate recognising 17-years of work at Woodlands. It is not in dispute that Mr Ferris worked at Woodlands for 17-years. That certificate is evidence that Mr Ferris has an extensive working history in connection with Woodlands, however, it does not account for the discrete Employment Periods, namely, his employment with Forum-A. The certificate is not evidence that there has been a transfer of calling.
  1. [124]
    I do not consider that there was a transfer of calling for the purposes of s 132 of the IR Act.

Order

  1. The Application is dismissed.

Footnotes

[1] Applicant's submissions filed 8 March 2023

[2] Respondent's submissions filed 15 March 2023

[3] Applicant's outline of submissions filed 15 June 2023.

[4] Applicant's amended outline of submissions filed 10 August 2023; Respondent's submissions in reply filed 1 August 2023.

[5] Applicant’s outline of submissions (n 2) [19].

[6] Affidavit of T Ferris affirmed 15 June 2023, Exhibit TF-03.

[7] Ibid.

[8] Applicant's closing submissions filed 9 April 2024, [19].

[9] Ibid [20].

[10] TR4-13, L13–15.

[11] Affidavit of T Ferris (n 6) Exhibit TF-05.

[12] Ibid Exhibit TF-05.

[13] Applicant's closing submissions (n 8) [23].

[14] Ibid [23].

[15] Ibid [24].

[16] TR1-61, LL36-39.

[17] TR1-61, LL34-41.

[18] TR1-61, L43.

[19] TR1-62, L4.

[20] TR1-63, LL15-20.

[21] TR1-62, L26.

[22] Affidavit of John Donald Elks affirmed 1 August 2023, [3].

[23] TR1-61, LL45-47; TR1-62, LL1-2.

[24] TR1-63, LL38-39.

[25] TR1-64, LL21-23.

[26] TR1-76, LL15-33.

[27] TR1-68, LL30-39.

[28] TR1-69, LL31-34; LL43-45.

[29] TR1-80, LL 29-47.

[30] TR1-80, LL33-36.

[31] TR1-71, LL17-18; reference to 24-hours occurred in re-examination see TR1-82 Ll4.

[32] TR1-76 – TR1-77.

[33] TR1-65, LL4-17.

[34] TR1-64, LL6-26.

[35] TR1-76, LL15-20.

[36] Applicant's closing submissions (n 8) [34].

[37] Ibid.

[38] TR1-84, LL9-18.

[39] Applicant's closing submissions (n 8) [35].

[40] Ibid [37].

[41] Affidavit of T Ferris (n 6) Exhibit TF-03.

[42] Applicant's closing submissions (n 8) [38].

[43] Ibid.

[44] Ibid [39].

[45] Ibid [40].

[46] Ibid [29].

[47] TR1-44, LL28-41.

[48] TR1-45, LL1-6.

[49] TR1-45, LL11-19.

[50] TR1-45, LL40-43.

[51] TR1-47, LL1-2.

[52] TR1-47, LLl4-16.

[53] TR1-53, LL30-47.

[54] TR1-54, LL36-41.

[55] TR1-54, LL43-44.

[56] TR4-4, LL7-9.

[57] TR4-4, LL23-25.

[58] TR4-5, LL28-30; TR4-5, L32.

[59] TR4-5, LL34-41.

[60] TR4-5, LL39-41.

[61] TR4-5, LL43-45.

[62] TR4-5, LL47-49.

[63] TR4-6, LL18-19.

[64] TR4-6, L25.

[65] TR4-14, LL40-47

[66] TR4-15, L29.

[67] TR4-15, LL38-46.

[68] TR4-16.

[69] TR4-23, LL11-13.

[70] TR4-23.

[71] TR4-25, LL28-29.

[72] TR4-25, L42.

[73] TR4-26.

[74] TR4-26, L47 – T4-27, L1.

[75] Applicant's closing submissions (n 8) [45].

[76] Ibid [48].

[77] Affidavit of T Ferris (n 6) Exhibit TF-11.

[78] Applicant's closing submissions (n 8) [49].

[79] Respondent's closing submissions filed 24 April 2024 [15].

[80] Affidavit of T Ferris (n 6) [6]; Exhibit TF-04.

[81] Respondent's closing submissions (n 79) [16].

[82] TR1-35, LL30-35.

[83] TR1-62, LL15-25 and TR1-63, LL20-25.

[84] TR1-84, LL15-25.

[85] Respondent's submissions in reply (n 4) [36].

[86] Applicant's closing submissions (n 8) [29].

[87] Respondent's closing submissions (n 79) [12].

[88] Ibid.

[89] TR1-35, L30, L35.

[90] Affidavit of JG Tregenza affirmed 1 August 2023, [5].

[91] Exhibit 3.

[92] Exhibit 11, letter dated 14 December 2009; statement dated 17 March 2008.

[93] Exhibit 11, invoice dated 1 October 2007.

[94] Woodlands Salary Employment Contract, 4.

[95] Exhibit 9.

[96] TR1-13, LL34-39.

[97] [2002] ICQ 49.

[98] Affidavit of T Ferris (n 6) Exhibit TF-09.

[99] TR1-71, LL9-13.

[100] [2022] QIRC 281, [95].

[101] [2005] HCA 9; (2005) 222 CLR 194.

[102] [2022] QIRC 281, [106] (citations omitted).

[103] TR1-64, LL2-23.

[104] TR1-88, LL11-25.

[105] [2002] ICQ 49, 325.

[106] (2000) 201 CLR, 648.

[107] Respondent's closing submissions (n 79) [23].

[108] [2002] ICQ 49, 326-327.

[109] Respondent's closing submissions (n 79) [25].

[110] Exhibit 6.

[111] Exhibit 7.

[112] Exhibit 7.

[113] Exhibit 8.

[114] Affidavit of T Ferris (n 6) Exhibit TF-05.

[115] Exhibit 8.

Close

Editorial Notes

  • Published Case Name:

    Ferris v Woodlands H.R. Pty Ltd (No. 2)

  • Shortened Case Name:

    Ferris v Woodlands H.R. Pty Ltd (No. 2)

  • MNC:

    [2024] QIRC 172

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    18 Jul 2024

Appeal Status

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

Cases Cited

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Fox v Programmed Integrated Workforce Ltd [No 2] [2022] QIRC 281
3 citations
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Cite 2 - [2022] QIRC 281
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Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9
1 citation
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Cite 1 - [2005] HCA 9
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194
2 citations
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Cite 1 - (2005) 222 CLR 194
Cite 2 - (2005) 222 CLR 194
PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648
2 citations
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Cite 2 - (2000) 201 CLR 648

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