Ferris v Woodlands H.R. Pty Ltd [2025] ICQ 30

INDUSTRIAL COURT OF QUEENSLAND CITATION: Ferris v Woodlands H.R. Pty Ltd [2025] ICQ 30 PARTIES: TIMOTHY FERRIS (appellant) v WOODLANDS H.R. PTY LTD ABN 33 109 707 502 (respondent) FILE NO: C/2024/32 PROCEEDING: Appeal DELIVERED ON: 5 December 2025 HEARING DATE: The orders were determined on written submissions without oral hearing MEMBER: Davis J, President ORDERS: 1. The appeal is allowed. 2. The proceedings are remitted to Industrial Commissioner Pidgeon: a. to determine whether there was continuity of employment of the appellant by virtue of the transfer of his calling; and b. to make orders consistently with whatever finding is made and the other findings which have been made and recorded in Ferris v Woodlands H.R. Pty Ltd (No. 2) [2024] QIRC 172. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – GENERAL EMPLOYMENT CONDITIONS – LONG SERVICE LEAVE – CONTINUITY OF SERVICE AND EMPLOYMENT – where the appellant was employed by the respondent – where the respondent made arrangements with a labour hire company – where by those arrangements the appellant became the employee of the labour hire company – where by subsequent arrangements the appellant again became an employee of the respondent – where over the whole period the appellant worked in the enterprise conducted by the respondent – where the appellant claimed long service leave from the respondent – whether there was continuity of service – whether continuity persisted through a transfer of the respondent’s calling – whether continuity of service persisted by virtue of a transfer -- 1 of 31 -- 2 of the appellant’s calling – whether the respondent interrupted or terminated service to avoid an obligation to pay long service leave – where the question of transfer of the calling of the appellant was not considered in the Commission – whether the matter should be remitted Industrial Relations Act 2016 (Qld), s 7, s 94, s 95, s 116, s 132, s 134, s 475, s 557, s 565 CASES: Abalos v Australian Postal Commission (1990) 171 CLR 167; [1993] HCA 78, cited Aldrich v Ross [2001] 2 Qd R 235; [2000] QCA 501, cited Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010, cited Australian Liquor, Hospitality & Miscellaneous Workers’ Union, Queensland Branch, Union of Employees v Wilsons Parking Australia 1992 Pty Ltd [2002] ICQ 49, cited Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47, cited Comalco Aluminium Ltd (Bell Bay) v O’Connor (No 2) (1995) 61 IR 455, cited Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, cited Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78, cited Director of Public Prosecutions v Smith [1991] 1 VR 63, cited DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, cited Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66, followed Edgington v Fitzmaurice (1885) 29 Ch D 459, cited Ferris v Woodlands H.R. Pty Ltd (No. 2) [2024] QIRC 172, related Flannery & Anor v Halifax Estate Agencies Ltd [2000] 1 WLR 377; [2000] 1 All ER 373, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Fox v Programmed Integrated Workforce Ltd (No 2) [2022] QIRC 281, cited Harvey v State of Queensland (Queensland Health) [2024] ICQ 10, cited Henning v State of Queensland (Queensland Treasury) [2023] ICQ 009, cited Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, cited Jones v Hyde (1989) 63 ALJR 349; [1989] HCA 20, cited Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, cited McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; [2005] FCAFC 142, cited -- 2 of 31 -- 3 Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; [2005] HCA 9, cited O’Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61, cited PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648; [2000] HCA 59, cited Programmed Integrated Workforce v Fox [2022] ICQ 32, cited Programmed Integrated Workforce v Fox [2024] QCA 30, considered Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393; [1987] HCA 27, cited Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22, cited Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed REPRESENTATION: The Australian Workers’ Union for the appellant The respondent represented itself through its agent [1] The appellant, Timothy Ferris, appeals against a decision made in the Queensland Industrial Relations Commission1 dismissing his claim for payment of unpaid long service leave.2 [2] The respondent, Woodlands H.R. Pty Ltd, is in the business of chicken farming. From March 2005 until 2022, a period of about 17 years, Mr Ferris worked in the chicken farming business conducted by Woodlands. [3] By s 95 of the Industrial Relations Act 2016 (the IR Act), entitlement to long service leave arises where an employee has completed “10 years continuous service” with the one employer. Where there has been seven years or more continuous service, a proportionate payment for long service leave may be due in certain circumstances. [4] Although Mr Ferris worked in Woodlands’ business continually for a period well in excess of 10 years, he was not always employed by Woodlands. [5] From March 2005 to 2009 (the first employment period), Mr Ferris was employed by Woodlands. From 2009 to 14 November 2017 (the second employment period), Mr Ferris was employed by Forum-A Pty Ltd which then provided Mr Ferris’s services to Woodlands. From 15 November 2017 until 2022 (the third employment period), Mr Ferris was again employed by Woodlands. As a matter of fact, Mr Ferris has not been employed by Woodlands for a continuous period of 10 years. He was not employed by Woodlands for a continuous period of seven years. 1 Ferris v Woodlands H.R. Pty Ltd (No. 2) [2024] QIRC 172. 2 Industrial Relations Act 2016, s 475(1)(a); and definition of “wages” as including amounts payable for leave entitlements; Sch 5 ‘Dictionary’. -- 3 of 31 -- 4 [6] However, as will appear below, various statutory provisions3 operate so that, for the purposes of calculation of entitlement to long service leave, employment is taken to be continuous employment with the same employer in certain circumstances, even when in fact it is not. [7] By reference to those statutory provisions, two questions were posed in the Commission: (a) was the termination of Mr Ferris’s employment by Woodlands and his re- employment with Forum-A done with intent to avoid the obligation of Woodlands to pay long service leave to Mr Ferris?;4 and (b) was there a relevant “transfer of calling” which preserves continuity of employment pursuant to s 132 of the IR Act? [8] The second point was litigated in the Commission upon a common understanding that the “calling” which was allegedly transferred was the calling of Woodlands: the calling of chicken farming. [9] After a hearing during which witnesses were called and cross-examined, both issues were determined against Mr Ferris. The Industrial Commissioner found that: (a) the termination of Mr Ferris’s employment at the end of the first employment period and his employment by Forum-A were not undertaken by Woodlands with intent to avoid long service leave obligations;5 and (b) there was no relevant transfer of calling.6 [10] The Industrial Commissioner dismissed the claim and Mr Ferris appealed to this Court. The grounds of appeal are: “a. The Commission erred in law by misinterpreting and consequently misapplying section 134 (6) (a) of the Industrial Relations Act 2016 (Qld) (‘Act’). The error, which raises question of law arose out of the misapplication of the material evidence via the application of the section 136 (6) (a) of the Act and Briginshaw v Briginshaw (‘Briginshaw’). b. The Commission erred in law by misinterpreting and consequently misapplying section 134 (6) (a) of the Act. c. The Commission erred in application of an error of law and fact, as the Commission decided two reasons for engaging Forum A despite the material evidence via the cross- examination revealed more than two, in turn putting doubt as to the reason for the engagement of Forum A Pty Ltd. d. The Commission erred in law on the basis of Briginshaw and section 134 (6) (a) of the Act as they misinterpreted the material evidence at paragraph 99 of the decision. 3 Industrial Relations Act 2016, Ch 2, Pt 4. 4 Industrial Relations Act 2016, s 134(6)(a). 5 Ferris v Woodlands H.R. Pty Ltd (No. 2) [2024] QIRC 172 at [93]-[104]. 6 At [105]-[124]. -- 4 of 31 -- 5 e. The Commission erred in law in interpreting a document between the Applicant and the Respondent as ‘....simply a statement of understanding of Woodland's regarding the situation’, when considering the said document should be a contract and release. f. The Commission has erred in law with regards to the transfer of calling (outlined in section 132 of the Act) in light of paragraph 64 (b) of Programmed Integrated Workforce Ltd v Craig Geoffrey Fox [2024] QCA 30. g. In so far as leave of the Court is required, under 557(4) of the Act, to advance mixed grounds of law and fact, leave is sought in order to achieve a just outcome for the Appellant.” [11] Ground (b) was not independently pursued. It was said to be subsumed in ground (a). No submissions were made in support of ground (c). Statutory framework [12] Chapter 2 of the IR Act concerns “modern employment conditions”. Part 3 of Chapter 2 concerns “Queensland employment standards” and Division 9 concerns “Long service leave”. [13] Relevantly, ss 94 and 95 provide as follows: “94 Application of pt 4 for particular purposes To remove any doubt, it is declared that the provisions of part 4 apply for working out an employee’s rights and entitlements to long service leave under this division, an applicable industrial instrument or a federal industrial instrument. 95 Entitlement—employees other than seasonal employees (1) This section applies to an employee, other than a seasonal employee. Note— For provisions applicable to seasonal employees, see subdivisions 7 and 8. (2) The employee is entitled to long service leave, on full pay, of— (a) if the employee has completed 10 years continuous service—8.6667 weeks; and (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. (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. -- 5 of 31 -- 6 … (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. (7) In this section— illness includes injury, incapacity or other medical condition. 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.” [14] By s 94, Part 4 of Chapter 2 is declared to apply for the purpose of determining entitlement to long service leave. Part 4 concerns “Continuity of service and employment” and, relevantly: “132 Continuity of service—transfer of calling (1) This section applies to a person (a transferred employee) who— (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 (b) is dismissed by an employer (also the former employer) before the transfer of a calling if— (i) the person is employed by another employer (also the new employer) after the transfer of a calling; and (ii) the employee— (A) was dismissed by the former employer within 1 month immediately before the transfer; and (B) is re-employed by the new employer within 3 months after the dismissal. (2) The transfer of the calling is taken not to break the transferred employee’s continuity of service. (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. (5) In this section— dismissed includes stood down. … -- 6 of 31 -- 7 134 Continuity of service—generally … (2) An employee’s continuity of service with an employer is not broken if the employee’s service is temporarily lent or let on hire by the employer to another employer. … (5) An employee’s continuity of service with an employer is not broken if— (a) the employee’s employment is terminated by the employer or employee; and (b) the employer re-employs the employee within 3 months after the termination. (6) An employee’s continuity of service with an employer is not broken if— (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 (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.” (emphasis added) [15] The IR Act defines “calling” and “transfer of a calling” as: “calling means–– (a) a craft, manufacture, occupation, trade, undertaking or vocation; or (b) a section of something mentioned in paragraph (a)” And: “transfer of a calling includes the transmission, assurance, conveyance assignment or succession of the calling–– (a) either by–– (i) operation of law; or (ii) agreement, including an agreement effected by a third person…”7 7 Industrial Relations Act 2016 (Qld), Sch 5: ‘Dictionary’. -- 7 of 31 -- 8 [16] Appeals from the Commission lie to this Court pursuant to s 557 of the IR Act which, relevantly here, provides: “557 Appeal from commission (1) The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of— (a) error of law; or (b) excess, or want, of jurisdiction. (2) Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than— (a) error of law; or (b) excess, or want, of jurisdiction. … (4) If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).” [17] By s 557(1), an appeal on a ground of error of law or excess or want of jurisdiction is as of right, and by s 557(2) an appeal may be taken on other grounds with the Court’s leave. The circumstances under which leave shall be given are prescribed by s 565, which provides: “565 When leave for appeal must be given If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court8 or full bench— (a) must give leave if it is satisfied it is in the public interest to do so; and (b) may not give leave other than under paragraph (a).” (emphasis added). Terms and scope of the appeal [18] The grounds of appeal articulated in the application to appeal are set out at paragraph [10] of these reasons. By ground of appeal (g), leave is sought “to advance mixed grounds of law and fact”. The basis upon which leave is sought is “in order to achieve a just outcome for the Appellant”. [19] Section 565 provides that the Court “must give leave” where “it is satisfied it is in the public interest to do so”.9 By s 565, the public interest is the only basis upon which 8 Defined as “the Industrial Court of Queensland”: Industrial Relations Act 2016, Sch 5 and s 407. 9 Section 565(a). -- 8 of 31 -- 9 leave can be given. Section 565(b) expressly prohibits the granting of leave on any other basis. [20] There is a distinction between the “public interest” and the interest of Mr Ferris.10 However, as Wilcox CJ and Keely J observed in Comalco Aluminium Ltd (Bell Bay) v O’Connor (No 2),11 a case concerning the Industrial Relations Act 1988 (Cth), the interest of the parties to a particular case may be relevant to whether there is public interest in the litigation. “There is nothing in either of these cases, 12 or in s 170UB or 170UC,13 to commend a narrow interpretation of the expression “public interest” or to suggest that, as submitted by Comalco, consideration of the public interest may not include consideration of the interests of the parties to the relevant industrial dispute. On the contrary, the resolution of industrial disputes being a primary purpose of the Act, the disposal of a dispute in a manner that takes account of the interests of the disputants is plainly within the scope and purpose of the legislation. The purpose of the reference to “public interest” is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation. But the statute does not direct the Commission as to the weight to be given to the various factors or as to the decision it should make.”14 [21] The submissions from the parties on the issue of leave was very limited. [22] On behalf of Mr Ferris, it was said: “42. The Appellant submits that if there is a view that there is a potential error in fact utilised in the Appellant’s submissions, that it should be permitted in order to achieve a just outcome of the Appellant considering the mix between the fact and law. 43. The Appellant submits that when considering these submissions, the importance of the facts is a key consideration influencing the reasoning of the Member and submits that it is reasonable for it to be taken into account for this matter.” [23] On behalf of Woodlands, this was submitted: “25. In reference to paragraphs 42 and 43 of the Appellant’s Submission, the Respondent rejects this in its entirety because: 10 O’Sullivan v Farrer (1989) 168 CLR 210 at 216; Re Queensland Electricity Commission; ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395. 11 (1995) 61 IR 455, a decision of the Industrial Relations Court of Australia. 12 A reference to O’Sullivan v Farrer (1989) 168 CLR 210 and Re Queensland Electricity Commission; Ex parte Electrical Traders Union of Australia (1987) 61 ALJR 393. 13 Industrial Relations Act 1988 (Cth). 14 At 479-480; and see also Harvey v State of Queensland (Queensland Health) [2024] ICQ 010 at [20]; Henning v State of Queensland (Queensland Treasury) [2023] ICQ 009 at [13]; Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010 at [35]; McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; and Director of Public Prosecutions v Smith [1991] 1 VR 63. -- 9 of 31 -- 10 25.1 there was a just outcome; and 25.2 the Appellant failed to establish on the balance of probabilities that there was a transfer of calling pursuant to the relevant section of the IR Act; and 25.3 the Appellant failed to establish on the balance of probabilities that he was entitled to long service leave pursuant to the relevant section of the IR Act; and 25.4 the Appellant themselves do not know, if there is a potential error in the fact as they relevantly stated, ‘… if there is a view that there is a potential error in fact’; and 25.5 There was no evidence before the Member capable of satisfying this Court that the Respondent intended to avoid its obligation to pay long service leave to the Appellant.” [24] By limiting the grounds of appeal, s 557(1) defines the scope of appellate intervention which is permitted. Section 557(2) then gives jurisdiction to the Court to entertain grounds other than those prescribed by s 557(1) and, therefore, authorises the widening of the scope of appellate review. [25] The power vested by s 557(2) is a discretionary one. Leave to argue extended grounds can only be granted if it is “in the public interest to do so.”15 Once that jurisdictional fact is satisfied, the scope of appellate review that might be allowed is only limited by the exercise of discretion. [26] In Turnbull v New South Wales Medical Board,16 Glass JA attempted to categorise various species of appeal by reference to the extent of appellate interference they allowed. At one end of the spectrum, his Honour identified “Appeals to supervisory jurisdiction” which his Honour described as “Only errors going to jurisdiction or denials of natural justice can be ventilated.”17 At the other end of the spectrum, his Honour identified “Appeals involving a hearing de novo”, which his Honour described as an appeal where “all the issues must be retried. The party succeeding below enjoys no advantage, and must if he can, win the case a second time.”18 [27] Here, no party suggested that the witnesses should be recalled and give evidence before me. The appeal was conducted on the evidence received by the Commission. The grounds of appeal all allege specific error and Mr Ferris seeks a “rehearing” in the sense that this Court should consider the evidence and draw its own conclusions.19 15 Industrial Relations Act 2016, s 565(a). 16 [1976] 2 NSWLR 281; and see Aldrich v Ross [2001] 2 Qd R 235. 17 [1976] 2 NSWLR 281 at 297. 18 At 298. 19 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]. -- 10 of 31 -- 11 [28] If that invitation is accepted a burden would fall upon the Court to conduct a proper review of the evidence.20 It has long been established that a trial judge enjoys an advantage over an appeal court in assessing the evidence, given that the trial judge has seen and heard the witnesses give evidence.21 [29] The principles were succinctly stated in Lee v Lee22 as follows: “A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law46. Appellate restraint with respect to interference with a trial judge's findings unless they are “glaringly improbable” or “contrary to compelling inferences as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge””23 [30] In the event that leave is given to consider errors of fact, I will conduct any review conscious of the advantage which the Industrial Commissioner enjoyed in hearing and observing the witnesses give evidence. Consideration [31] The grounds of appeal fall into two categories. [32] Grounds (a), (b), (c), (d), and (e),24 concern the first important conclusion reached by the Industrial Commissioner, namely that the engagement of Forum-A was not effected for the purpose of Woodlands avoiding obligations to pay long service leave. [33] Whether the agreements made with Forum-A were made with the particular intention to “avoid an obligation [to pay long service leave]” is ultimately a question of fact; “the state of a man’s mind is as much a fact as the state of his digestion”.25 There may be legal error which infects a factual finding. If legal error is established no resort to s 557(2) is necessary. [34] Ground (f) concerns the second important conclusion reached by the Industrial Commissioner, namely that there was no transfer of calling. 20 Fox v Percy (2003) 214 CLR 118 at [25]; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43]; followed in Lee v Lee (2019) 266 CLR 129 at [55]. 21 Fox v Percy (2003) 214 CLR 118 at [26]-[29], following Jones v Hyde (1989) 63 ALJR 349, Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472. 22 (2019) 266 CLR 129. 23 At [55]. 24 Set out at paragraph [10] of these reasons. 25 Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483. -- 11 of 31 -- 12 [35] What is stated as ground (g) is not an independent ground of appeal but is a statement of the basis upon which leave is sought under s 557(4) of the IR Act to argue grounds beyond those prescribed by s 557(1). [36] It is convenient to deal with ground (f) first. Ground (f) – The Commission has erred in law with regards to the transfer of calling (outlined in s 132 of the Act) in light of paragraph [64](b) of Programmed Integrated Workforce Ltd v Craig Geoffrey Fox [2024] QCA 30 [37] Programmed Integrated Workforce Ltd v Craig Geoffrey Fox26 concerned the potential liability of Programmed Integrated Workforce (PIW), a company which conducted a labour hire business, to pay long service leave. [38] PIW held a long-standing contract with the Brisbane City Council whereby it provided labour services to the Council, including for gardening work. A Mr Haining was employed by PIW on a casual basis and PIW supplied his services to the Council. He performed gardening work. [39] PIW’s contract with the Council expired and the Council did not renew it. Instead, the contract was put to tender and Randstad Pty Ltd won the tender. Randstad supplied services to the Council pursuant to the new contract. In the course of that enterprise, Randstad employed various previous employees of PIW, including Mr Haining. [40] If there was a transfer of PIW’s calling to Randstad, then the long service liability fell to Randstad. Otherwise, it remained upon PIW. In the Commission27 and, in this Court on appeal,28 it was held that there had been no “transfer” of calling as nothing had been “transferred.” Reliance was had upon Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd.29 However, critically, as it would turn out, the provisions considered in Gribbles referred to a transfer of “business”. The IR Act refers to a “transfer of calling” with that term being statutorily defined. [41] On appeal to the Court of Appeal,30 Bond JA, with whom Flanagan JA and Cooper J agreed, held that Randstad had succeeded to the calling of PIW.31 There was therefore a transfer of the calling of PIW. That maintained the continuity of service and the appeal was allowed. [42] Here, the calling of Woodlands is the business of chicken farming.32 Mr Ferris claimed there had been a transfer of the calling of Woodlands to Forum-A. In my view, the Commission correctly found that there was no transfer of Woodlands’ calling to Forum-A. Throughout the whole period of Mr Ferris’s work, Woodlands conducted the calling of chicken farming. Labour to operate that calling was originally provided by employees of Woodlands. Then for a period, the chicken 26 [2024] QCA 30. 27 Fox v Programmed Integrated Workforce Ltd (No 2) [2022] QIRC 281. 28 Programmed Integrated Workforce Ltd v Fox [2022] ICQ 32. 29 (2005) 222 CLR 194. 30 Programmed Integrated Workforce Ltd v Fox [2024] QCA 30. 31 Definition of “transfer of a calling” includes “succession” to the calling, Industrial Relations Act 2016, Sch 5; and see Programmed Integrated Workforce Ltd v Fox [2024] QCA 30 at [57]. 32 Ferris v Woodlands H.R. Pty Ltd (No. 2) [2024] QIRC 172 at [115]. -- 12 of 31 -- 13 farming business of Woodlands was conducted utilising the services of employees of Forum-A. Later still, the calling was again conducted utilising the services of employees of Woodlands. As correctly found by the Industrial Commissioner, there was no transfer of the calling of Woodlands to Forum-A. [43] In Programmed Integrated Workforce Pty Ltd v Fox,33 PIW advanced an argument in the Court of Appeal that there was a transfer of Mr Haining’s calling. It was unnecessary for the Court of Appeal to ultimately determine the correctness or otherwise of that argument.34 However, Bond JA observed: “(b) Moreover, there was no need to regard the relevant calling as a calling “of the former employer”. PIW was surely right to suggest to this Court that the change in statutory wording from previous statutory analogues suggested an intention that the calling might be a calling of an employer, or it might be a calling of an employee. That must be true when one has regard to the note to s 125(3) of the Act which provided: “In relation to an employee whose employment is terminated due to the transfer of the employee’s calling, see part 4.”” (emphasis added)35 [44] On his Honour’s construction of s 132(1), an employee’s calling might be transferred from one employer to another and continuity of service maintained. Such a proposition might initially seem counterintuitive, as an employee could ultimately transfer his calling to another employer and, if continuity was maintained, the whole purpose of the statutory scheme to reward loyalty of service is frustrated. What is relevant is continuity of service, not continuity of calling. However, a transfer by the employee of the employee’s calling is not what his Honour envisaged. [45] His Honour further observed: “(d) The fact that person A is engaged in a calling in the sense discussed; stops being engaged in the calling; and person B starts being engaged in the calling might not be consistent with regarding person A having transferred the calling to person B in some senses of the verb “transfer”. But in this statute “transfer” is not limited to any particular sense and so long as there is a transfer from person A to person B, the person who effects the transfer does not need to be person A. Nor does the transfer need to be effected by an agreement between person A and person B. That which can be regarded as a transfer can be effected by an agreement effected by person C. Or it could simply happen because in light of other events, and by operation of law on those events, person B is the only person who can be engaged in carrying on the calling.”36 33 [2024] QCA 30. 34 Programmed Integrated Workforce Pty Ltd v Fox [2024] QCA 30 at [61]. 35 Programmed Integrated Workforce Pty Ltd v Fox [2024] QCA 30 at [64](b). 36 At [64](d). -- 13 of 31 -- 14 [46] On his Honour’s construction, an employer may “transfer [the] calling”37 of an employee to another employer without breaking the continuity of service of the employee. [47] His Honour’s observations are dicta, as his Honour expressly did not determine the appeal on the basis of a transfer of Mr Haining’s calling. The observations are, therefore, not binding upon me. However, the statements are expressed in quite emphatic terms and Flanagan JA and Cooper J agreed with them. I ought follow and adopt them unless there is some compelling reason not to. In my respectful view, his Honour’s construction is clearly open. [48] Long service leave is based on continuity of service; an employee serving the same employer for the statutorily prescribed period. Section 132 creates a fiction. By s 132(2), where the continuity of service is in fact broken in the circumstances described in s 132(1), continuity is “taken”38 not to be broken. Then the transfer of calling, being the circumstances described in s 132(1), has the effect prescribed by s 132(3). [49] The fiction attaches to the relationship of employee and “new employer” and deems the service to the “former employer” as service to the “new employer” for the purposes of continuity of service when considering an entitlement to long service leave. This all comes into force when there has been a “transfer” of a calling”.39 [50] The term “calling” is used throughout the IR Act.40 In some sections, the term “calling” clearly means the employer’s calling. In s 7, for instance, there is a reference to “a person for whose calling or business an outworker works.”41 The term “the employer’s calling or business” is used in s 116. In some sections, the reference is clearly to an employee’s calling. Examples are found in Chapter 12, which deals with industrial organisations. An industrial organisation has coverage over employees who are members, and also has coverage of employees who, by the organisation’s constitution, may become members. An employee may become a member if the employee is undertaking a calling within the organisation’s constitution.42 [51] If the legislative intention was to limit the fiction of continuity of service to circumstances where there had been a transfer of the employer’s calling, that could easily have been achieved. As already observed, there are sections in the IR Act which specifically reference an employer’s calling. The term used in s 132 is “a calling” which, in the context of the IR Act taken as a whole could include the calling of the employer and the calling of the employee, depending upon the context of any particular provision. 37 As the term is defined. 38 Section 132(2). 39 Emphasis added. 40 Sections 7, 26, 31, 114, 116, 125, Chapter 2 Part 4, 135, 137, 341, 348, 448, 488, 528, 582, 604, 605, 615, 623, 718, 910, 926, 978, 979. 41 Section 7(2)(b). 42 See, for example, ss 604, 615, 718. -- 14 of 31 -- 15 [52] The definition of “transfer of a calling” is very wide and includes a situation where there is a transfer by agreement of third parties. The mischief which the provisions are designed to meet is to ensure that long service leave entitlements are not lost where, in substance, the employee has been engaged continually in the one business or enterprise. The preservation of continuity of service in circumstances where third parties have, by agreement, disrupted continuity by reorganising employment of the employee from one entity to another fulfils that legislative purpose. [53] I adopt the construction of the provisions explained by Bond JA and hold that continuity of service may be preserved by a transfer of an employee’s calling. [54] During the first employment period, Mr Ferris commenced work with Woodlands in a role he described as “a farm labourer” or “mill labourer.” He worked in the mill area for about eighteen months and then, from probably about late 2006, he worked on the weighbridge and in the yard.43 [55] Mr Ferris’s engagement with Woodlands was governed by an Australian Workplace Agreement (AWA) which modified rights which Mr Ferris might otherwise enjoy under the Poultry Farm and Hatchery Employees’ Award – State. The AWA contained this: “4. ALL UP RATE Unless otherwise stated, the paid rates (hourly, daily, weekly etc). shown in the agreement will encompass provisions for holiday pay loading, long service leave, sick pay, public holiday and weekend and late work penalty rates and allowances, meal money, travel allowances, redundancy, retrenchment and severance, parental bereavement and other such leaves and entitlements set out in any applicable Awards or Acts that apply to your employment.”44 [56] In evidence before the Commission, Mr Ferris said that his employment with Woodlands ceased on or about 30 March 2009. In cross-examination, this exchange occurred: “ Mr Ferris, did your employment with Woodlands cease on or about the 30th of March 2009?---As I understand, yes. Yes. Thank you. What was the reason that your employment ceased with Woodlands?---I was told that we were going to be transferred to a – a labour hire company. Were you offered any other opportunities at Woodlands?---I – I don’t understand the question. Well, did they ask you to stay working for Woodlands and not be transferred to Forum-A?---No.”45 43 T1-37. 44 Clause 4. 45 T1-30, ll 17-27. -- 15 of 31 -- 16 [57] Mr Ferris was then employed by Forum-A under the terms of a Collective Workplace Agreement (CWA). In addition, there were other documents given to Mr Ferris at about the time he became an employee of Forum-A. Some of those he signed. [58] By a document headed “Long Assignment Casual: How to fill out paperwork”, this was said: “This Documentation applies to your work done at our clients business. You are the employee of Forum A Pty Ltd and subject to our workplace agreements and directions. However our client is responsible for much of the Workplace Health and Safety and we have also authorized them to direct you on our behalf in your daily duties. This is not a Labour hire arrangement and you won’t be moved unless you or our client requests it. This is a secure and envisaged to be a long term position. Please treat it accordingly. Before you start, you will need to complete our attached paperwork and although you are specifically not the employee of our client, you will also need to complete our client’s paperwork with respect to WPH&S and the house rules that apply to all personnel who work on their job site.” [59] A document styled “CWA New Employee Checklist (Casual)” contained this: “5. When posted to Woodlands I agree to give 7 days notice of reassignment or termination” [60] In November 2017, Mr Ferris received a letter from Forum-A dated 1 November 2017 which advised of the termination of the CWA. It included: “As you are aware, the Forum A CWA – 050407 (‘Collective Agreement’) is ceasing to operate from 31 December 2017. You are currently employed by Forum A Pty Ltd under the terms of the Collective Agreement, and your labour is hired to Woodlands Enterprises Pty Ltd (‘Woodlands’) a per a labour hire arrangement Woodlands has with Forum A Pty Ltd. Forum A Pty Ltd has informed us that it will cease to provide labour to Woodlands under the labour hire arrangement from 14th November 2017. As a consequence of Forum A Pty Ltd ceasing to provide labour to Woodlands under the labour hire arrangement, Woodlands HR Pty Ltd (‘Woodlands HR’) wishes to offer you full-time employment in the position of Weighbridge Co- Ordinator. Enclosed with this letter is an Employment Contract which sets out the offer of full-time employment from Woodlands HR. If you accept this offer of employment, your employment with Woodlands HR will commence on 1st November 2017, or such later date as agreed between you and Woodlands HR (‘Commencement Date’). … In addition, Woodlands will not recognise your service with Forum A Pty Ltd for the purposes of your entitlement to long service leave as there has not been a transfer of calling between Forum A Pty Ltd and Woodlands HR under the -- 16 of 31 -- 17 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 will have to long service leave, or pro-rata service leave, which accrued during your employment with Forum A Pty Ltd, should be paid to you in lieu by Forum A Pty Ltd at the end of your employment with them.” [61] Attached to that document was an acknowledgement: “I, Tim Ferris, wish to accept the offer of full-time employment from Woodlands HR Pty Ltd (‘Woodlands HR’) on the terms and conditions contained in this letter and the Employment Contract received with this letter. I understand that from the Commencement Date, Woodlands HR will be my employer. I understand that Woodlands HR will not recognise my prior continuous service with Forum A Pty Ltd for the purposes of:  annual leave;  redundancy;  the minimum period of employment with regard to unfair dismissal;  notice of termination; and  long service leave. I acknowledge that:  any entitlement, or pro-rata entitlement as listed above, I may have relevant to my employment with Forum A Pty Ltd is not the responsibility of Woodlands HR; and I agree that any issues or claims (if any) that I may have regarding entitlements due to me from my employment with Forum A Pty Ltd, are Forum A Pty Ltd liability.” [62] By letter dated 7 November 2017, Forum-A advised Mr Ferris: “This notice is to confirm that effective close of business Tuesday, 14 November 2017, our hire arrangement to provide staff at Woodlands (Host Employer) will cease. Consequently, this letter is to confirm that your labour hire assignment with the Host Employer will cease, effective Tuesday, 14 November 2017. Your final pay for this assignment will be processed on Wednesday, 15 November 2017. As stated in your Employment Offer on commencement of your employment with us, 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. -- 17 of 31 -- 18 Woodlands has advised there may be opportunities for direct employment through their company, or with a different service provider of their choice. Should you need to discuss potential future employment with Woodlands, please contact Jenny Tregenza directly on 07 5494 6133. However, should you choose not to continue your engagement with the Host Employer, we are happy to continue to employ you and will endeavour to place you with another client, should a suitable assignment become available.” [63] Mr Ferris signed an employment contract with Woodlands on 8 November 2017 for a position described as: “Item 3 Position Weighbridge co-ordinator” [64] What the evidence before the Commission showed is that from 2005 through to his final retirement in 2022, Mr Ferris undertook the calling of a poultry farm worker. From about late 2006 to 2022 that calling was more narrowly defined as poultry farm weighbridge employee. He conducted that calling from 2006, during the time he was employed working in Woodlands’ enterprise. [65] As previously explained, consistency of calling is not the test. There must be consistency of service and in this case that depends on there being a transfer of calling. As correctly held by the Industrial Commissioner, there has been no transfer of the employer’s (Woodlands’) calling.46 [66] Mr Ferris from 2005 to 2022, worked continuously in Woodlands’ business and for most of that time his calling was the more narrowly defined one of poultry farm weighbridge employee. By arrangements reached between Woodlands and Forum- A, Mr Ferris’s calling was conducted through different employers and arguably there has been a “transfer” of Mr Ferris’s calling from Woodlands to Forum-A and then back to Woodlands. [67] Woodlands defends ground (f) on these bases: “24. In reference to paragraphs 36 to 41 of the Appellant’s Submission, the Respondent rejects this in its entirety because: 24.1 the principles in Programmed Integrated Workforce Ltd v Craig Geoffrey Fox [2024] QCA 30 (Workforce Case) were not raised by the Appellant during the original hearing nor during the Appellant’s closing submissions before the Member; and 24.2 the findings of fact made by the member were entirely open to the Member to find and there has been no demonstrated error on the part of the member in so finding; and 24.3 the Appellant ignores Member’s clear review of material facts as to how they concluded that there was no ‘transfer of a calling’ pursuant 46 See paragraph [42] of these reasons. -- 18 of 31 -- 19 to 132 of the IR Act, in accordance with the relevant principles of law.” [68] To that submission, Mr Ferris replied: “17. The Appellant rejects the Respondent’s submissions at paragraph 24, in response, the Appellant is only raising a point of law that does not require any further evidence and another hearing, as such, the raised case law should be allowed. 18. The Appellant submits that the said argument is a point of law that utilises the same facts that have been outlined in both the section 132 and 134 (6) of the Act submissions filed by the Appellant before the Member on 9 April 2024, as such, the Respondent is not in an adverse position with regards to this contention. 19. The Appellant submits that their employment would satisfy the recent case law’s opinion on the transfer of calling as they have held the same or similar job and location for the entire 17 years and the only change was his employer, as such, the Appellant would submit that there has been a transfer of calling. 20. In turn, the Appellant submits that based on the material evidence outlined in paragraph 57 of the Appellant’s Closing Submissions, that there has been a transfer calling when considered through the case of Programmed Integrated Workforce Ltd v Craig Geoffrey Fox.” [69] The Industrial Commissioner did not consider whether there had been a transfer of Mr Ferris’s calling. The Industrial Commissioner clearly understood that the question before her was whether there had been a transfer of Woodlands’ calling to Forum-A and then Forum-A’s calling back to Woodlands. This is made clear in the judgment by paragraphs [115] and [116]: “Was there a transfer of calling? [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. [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 -- 19 of 31 -- 20 farm, as demonstrated by Mr Elks' evidence that he has been the Managing Director of Woodlands for 40-years..” [70] When considering the relevant legal principles governing the “transfer of calling” the Industrial Commissioner referred to Australian Liquor Hospitality & Miscellaneous Workers’ Union Queensland Branch, Union of Employees v Wilsons Parking Australia 1992 Pty Ltd,47 Fox v Programmed Integrated Workforce Ltd (No 2),48 which was the decision of the Commission overturned on appeal, Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd49 and PP Consultants Pty Ltd v Finance Sector Union of Australia.50 All those cases concern not the transfer of calling of an employee, but the transfer of calling of an employer. [71] The Industrial Commissioner did not refer to the Court of Appeal’s decision in Programmed Integrated Workforce Ltd.51 It can be inferred that the parties did not refer her to that decision. The last hearing date of Mr Ferris’s case before the Commission was 15 January 2024. The Court of Appeal’s decision was not delivered until 8 March 2024. No party sought to reopen the proceedings in the Commission after the delivery of the Court of Appeal’s decision. [72] Mr Ferris’s argument before the Commission was based on the High Court’s judgment in Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd.52 Under the statute being there considered,53 continuity depended on a party being a “successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was party to the industrial dispute.” The High Court therein analysed the different assets which made up the relevant business and then determined whether they had been transferred. In Programmed Integrated Workforce v Fox,54 the Court of Appeal held that such an analysis was not called for under the provisions of the IR Act. In any event, Mr Ferris submitted to the Commission that because Forum-A effectively used the workforce of Woodlands, there had been a transfer of the undertaking as the workforce was an asset of the undertaking. It was never submitted that the relevant “calling” was Mr Ferris’s calling. [73] Therefore, the position is: (a) the wrong result may have been reached in the Commission because a relevant consideration was whether Mr Ferris’s calling had been transferred; but (b) that point was not litigated in the Commission because Programmed Integrated Workforce55 had not been delivered by the Court of Appeal by the time of the conclusion of the hearing in the Commission and the parties had assumed that the only relevant question was whether there had been a transfer of calling of Woodlands and Forum-A. 47 [2002] ICQ 49. 48 [2022] QIRC 281. 49 (2005) 222 CLR 194. 50 (2000) 201 CLR 648. 51 [2024] QCA 30. 52 (2005) 222 CLR 194. 53 Workplace Relations Act 1996 (Cth). 54 [2024] QCA 30. 55 [2024] QCA 30. -- 20 of 31 -- 21 [74] Given those circumstances, Mr Ferris should not be denied the opportunity to establish an entitlement to long service leave based on continuity of service preserved by a transfer of his calling from Woodlands to Forum-A and back to Woodlands. [75] I do not accept the submission made on Mr Ferris’s behalf that the question of the transfer of Mr Ferris’s calling can be decided on the evidence which has been led in the Commission. Woodlands has not had proper opportunity to meet such a case. It is appropriate to allow the appeal and remit to the Industrial Commissioner the question as to whether there was continuity of employment of Mr Ferris as a consequence of the transfer of his calling. The Industrial Commissioner can consider what further evidence and arguments she might receive in order to determine that issue. [76] Although the appeal must be allowed and the case remitted to the Industrial Commissioner, it is necessary to consider the other grounds of appeal in order to determine the extent of issues remitted. Ground (a) – The Commission erred by misinterpreting and consequently misapplying s 134(6)(a) of the Industrial Relations Act 2016 (Qld). The error which raises a question of law arose out of the misapplication of the material evidenced by the application of s 136(6)(a)56 of the Act in Briginshaw v Briginshaw [77] Grounds (a) and (c) were not argued separately in the written submissions filed on Mr Ferris’s behalf.57 That is understandable as the two grounds are clearly related. Ground (c) was subsumed in ground (a) and need not be separately considered. [78] The submissions made in support of ground (a) can be summarised as: (a) exhibits TF-03 and TF-05 of Mr Ferris’s affidavit constitute compelling evidence of an intent by Woodlands and Forum-A to transfer Mr Ferris’s employment to avoid the obligation to pay long service leave. What follows from that it is submitted: (i) the reasons are inadequate; and (ii) these pieces of evidence should have led to a finding that Woodlands’ intention in having its employees employed by Forum-A was to avoid long service leave commitments; (b) there was evidence of various reasons for the arrangements which were made between Woodlands and Forum-A. The Industrial Commissioner did not refer to all that evidence. What follows from that it is submitted is: (i) the reasons are inadequate; and (ii) there has been insufficient consideration of the matters raised by s 134(6)(a). 56 This should be a reference to s 134(6)(a). 57 There was no oral hearing on the appeal. -- 21 of 31 -- 22 [79] In addition to those particular submissions, it is also said that s 134(6)(a) has been misapplied, especially when having regard to the Briginshaw principles.58 I shall deal with that point first. [80] There is in my view no basis upon which it could be concluded that the Industrial Commissioner misunderstood the operation of s 134(6)(a). She directed herself to the section.59 The Industrial Commissioner properly stated the question, namely that continuity of service would continue if “[Woodlands] interrupted or terminated [Mr Ferris’s] service with intent to avoid an obligation to pay long service leave…”60 [81] The analysis of the evidence was directed to the ascertainment of that intention and whether Mr Ferris had proved that specific intent. [82] In Briginshaw, Dixon J (as his Honour then was) explained that the law only recognised two standards of proof being the criminal standard of proof beyond reasonable doubt and the civil standard of proof on the balance of probabilities, but that the seriousness and nature of the allegation sought to be proved may affect the force and quality of the evidence necessary to convince the Court of proof.61 [83] The Industrial Commissioner did not refer to Briginshaw in her reasons. She did refer to several submissions made on Mr Ferris’s behalf where it was submitted that she should be satisfied on the balance of probabilities of various things.62 In deciding factual matters, the Industrial Commissioner directed herself to, and applied, the balance of probabilities test in making her critical findings in relation to intent.63 [84] The allegation made by Mr Ferris was a serious one. It was an allegation that Woodlands had deliberately taken steps to avoid a legal obligation. Application of the Briginshaw principles, recognising the seriousness of the allegation and thereby suggesting cogent proof, favoured Woodlands not Mr Ferris. There is in my view nothing to suggest that the Industrial Commissioner erred in her approach. However, if she did fail to apply Briginshaw principles, that error favoured Mr Ferris. [85] Exhibit TF-03 to Mr Ferris’s affidavit is the letter of offer of employment by Forum- A to Mr Ferris. Acceptance of that offer resulted in the second period of employment. Exhibit TF-03 is the subject of ground (d). I shall deal with all complaints relevant to Exhibit TF-03 when considering ground (d). [86] Exhibit TF-05 is the letter from Woodlands to Mr Ferris in 2017 offering him employment. Acceptance of that offer resulted in the third employment period. Exhibit TF-05 is the subject of ground (e). Similarly, I shall deal with all complaints relevant to TF-05 when considering ground (e). 58 Briginshaw v Briginshaw (1938) 60 CLR 336. 59 Ferris v Woodlands H.R. Pty Ltd (No 2) [2024] QIRC 172 at [13]. 60 At [14]. 61 At 362-363. 62 Paragraphs [20], [42], [45]; and similar submissions on behalf of Woodlands, paragraph [47]; applicant’s submissions at [52], [78]. 63 At [97]. -- 22 of 31 -- 23 Ground (d) – The Commission erred in law on the basis of Briginshaw and s 134(6)(a) of the Act as they misinterpreted the material evidence at paragraph [99] of the decision [87] The complaint in ground (d) as developed in the written submissions is that there are inadequate reasons given for the conclusion reached at paragraph [99] of the reasons to which I shall return. Paragraph [99] concerns exhibit TF-03 to Mr Ferris’s affidavit, which is a bundle of documents constituting an offer of employment by Forum-A to Mr Ferris. [88] Ground (a), as earlier observed, raised complaint, like ground (d), as to the Industrial Commissioner’s consideration of exhibit TF-03. [89] One document in the bundle, which is TF-03, bears the footer “WoodlandsnoLSL170309VER2”. It was submitted that the letters “LSL” meant “long service leave” and the footer, therefore, read, in context, “Woodlands no long service leave”. It was submitted that the footer “incontrovertibly shows an intent by [Woodlands] and Forum A Pty Ltd to avoid the obligations regarding long service leave under the Act”.64 [90] On the same document is a declaration which Mr Ferris was required to sign as part of his acceptance of the offer of employment. Two matters which Mr Ferris was required to declare are: “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.” [91] It is submitted that the Industrial Commissioner’s reasons did not deal with the declarations required to be made by Mr Ferris. It was submitted that the subclause by which Mr Ferris was required by Woodlands to make the declarations is powerful evidence supporting Mr Ferris’s case. [92] The Industrial Commissioner heard from various witnesses. She made findings based on their evidence which was challenged on various bases including credit. [93] Jennifer Tregenza was the office manager of Woodlands at all relevant times. She gave evidence by way of affidavit which was recorded in the judgment as follows: “[96] I also note Ms Tregenza’s evidence that: 5. In or around 2009, there was an operational change to Woodlands where the following occurred: a) To streamline the HR section of the business; and b) As the Company was growing, it was decided that it would be beneficial to outsource HR, to an entity who 64 See primary judgment at [27]. -- 23 of 31 -- 24 could manage the complex nature of these requirements. 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.” [94] That evidence was accepted.65 [95] Upon Mr Ferris’s employment with Forum-A, he became subject to the CWA.66 That agreement purported to exclude long service leave entitlements which may otherwise become owing by Forum-A.67 [96] The theory that the footer showed an intention on Woodlands’ behalf to avoid long service leave obligations was not put to either Ms Tregenza or Mr Elks (managing director of Woodlands), or Messrs Graeme and Benjamin Haycroft, directors of Forum- A. Woodlands’ submission on this point was recorded in the primary judgment as: “[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: ‘… 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.’” [97] Against that background, the Industrial Commissioner held: “[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 65 At [97]. 66 See paragraph [56] of these reasons. 67 The terms are set out at paragraph [75] of the primary judgment. -- 24 of 31 -- 25 of Forum-A to not pay Long Service Leave, however this is not the question before me.” [98] Some principles concerning the assessment of adequacy of reasons are dealt with later in this judgment.68 There can be no complaint here. The clear issue was whether the content of the footer appearing on a document generated by Forum-A was evidence proving the intention of Woodlands to avoid its obligations to pay long service leave. The Industrial Commissioner answered that in the negative and in paragraph [99] she explained why. [99] The effect of paragraph [99] is that: (a) the CWA was a document generated by Forum-A; (b) the CWA governed Mr Ferris’s employment with Forum-A; (c) the CWA provided (legally or not) that no long service leave would accrue during Mr Ferris’s employment with Forum-A; and (d) the footer reflects the fact that no long service will accrue under the CWA. [100] What is not explained in paragraph [99] is the significance (if any) of the use of the name “Woodlands” in the footer. To a point, that is inconsistent with the footer only reflecting the employment relationship between Mr Ferris and Forum-A. However, the evidence accepted by the Industrial Commissioner was that Woodlands was restructuring and the Woodlands’ employees as a group were to be employed by Forum-A. Those employees were, therefore, all “Woodlands” employees now subject to the CWA in their employment with Forum-A. [101] Given the findings made and the reasons expressed in paragraph [99], it is clear why the Industrial Commissioner would have found nothing sinister in the footer. [102] The Industrial Commissioner’s conclusions in relation to the issue of Woodlands’ intent to avoid its long service leave obligations are contained within paragraphs [93]-[103] of the judgment. There, she refers specifically to the issue concerning the footer but does not expressly deal with the issue concerning the declarations. [103] The submissions about the declarations were not ignored. They are specifically referred to in the judgment in a passage where the submissions are being recorded: “[24] The Applicant submits that the Respondent’s intent to avoid the Long Service Leave obligation is evidence 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. [25] In support of this submission, the Applicant points to Exhibit TF-03. The 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 entitled, a “Forum A Pty Ltd 68 At [121]. -- 25 of 31 -- 26 (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.” [104] Although the Industrial Commissioner does not deal specifically with the declarations within consideration of the agreements, she dealt with the argument concerning the footer. That is paragraph [99].69 Then, at paragraph [100]: “[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.” [105] The arguments recorded in paragraphs [74]-[79] concern the effectiveness or otherwise of the CWA to extinguish long service leave entitlements. As can be seen from paragraph [100], the Industrial Commissioner was well aware that it was Forum-A, not Woodlands, which was taking on any future obligations to Mr Ferris. The question squarely understood by the Industrial Commissioner was whether the actions of Forum-A were reflective of the intention of Woodlands. She concluded that issue against Mr Ferris. [106] It is not necessary for a decision-maker to refer to each and every piece of evidence and each and every submission and deal with all such things. It is for the decision-maker to determine what is important and what is not. The evidence of the declarations was just 69 See paragraph [97] of these reasons. -- 26 of 31 -- 27 part of a broader submission that Woodlands and Forum-A had conspired to avoid the long service leave obligations. [107] In my view, the Industrial Commissioner dealt adequately with that issue, including the CWA and, to the extent she thought necessary, exhibit TF-03. [108] The complaints made about the Industrial Commissioner’s handling of TF-03, both in ground (a) and ground (d), have no substance. Ground (e) – The Commission erred in law in interpreting a document between the Applicant and the Respondent as ‘….simply a statement of understanding of Woodland’s regarding the situation’, when considering the said document should be a contract and release. [109] The document referred to in ground (e) is the letter from Woodlands which offered Mr Ferris employment for what became the third employment period.70 It is exhibit TF-05 to Mr Ferris’s affidavit. [110] The relevant part of the letter is set out at paragraph [30] of the judgment under appeal: “[30] The Applicant also points to Exhibit TF-05 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 Form 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.” [111] In dealing with that evidence, the Industrial Commissioner observed: “[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. 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 70 Exhibit TF-05 to Mr Ferris’s affidavit. -- 27 of 31 -- 28 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.” [112] By ground (e), these findings are criticised on the bases that: (a) the Industrial Commissioner describes the letter as “simply a statement of the understanding of Woodlands regarding the situation”, whereas the document is an Offer of an Employment and waiver which, upon acceptance had contractual force (the first submission); and (b) the letter favours the drawing of an inference that there was an intention to avoid the long service leave obligations and there are no proper reasons for the rejection of that submission (the second submission). [113] As earlier observed, issues concerning exhibit TF-05 are raised as part of ground (a). The submission there is: (a) the relevant passage in the letter is evidence from which an inference should be drawn that Woodlands intended to avoid its obligations to pay long service leave; and (b) the Industrial Commissioner has not “appropriately turned her mind to the document”. [114] The nature of the letter of offer has not been misunderstood by the Industrial Commissioner. At paragraph [30] of the judgment she properly describes the letter as “the correspondence from Woodlands…offering [Mr Ferris] employment”. In paragraph [101], the Industrial Commissioner again refers to the document as “the letter offering Mr Ferris employment with Woodlands”.71 [115] What the Industrial Commissioner is referring to as the “statement of the understanding of Woodlands”72 is not the letter as a whole, but the passage in the letter which is set out at paragraph [30] of the judgment below and paragraph [110] of these reasons. [116] This is made clear by the reasoning in paragraph [101].73 The fourth sentence in that paragraph states “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”. That sentence is a reference to the passage which is set out at paragraph [30]. In the next sentence, the Industrial Commissioner says “this is simply a statement…” The reference to “this” is a reference to the “statement” which is set out at paragraph [30]. In the next sentence in paragraph [101], the Industrial Commissioner says, “this is simply a statement “of the understanding of Woodlands”.74 The reference to “this” is a reference to the statement set out at paragraph [30] and which is part of the letter of offer. 71 Paragraph [101]. 72 Paragraph [101]. 73 Which appears at paragraph [111] of these reasons. 74 Emphasis added. -- 28 of 31 -- 29 [117] The Industrial Commissioner’s approach is consistent with how Mr Ferris presented his case. It is the passage which is set out at paragraph [30] which is the part of the letter which Mr Ferris relies upon. This is made clear by paragraph [31] of the judgment below: “[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". 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".” [118] The reference to “the above” is a reference to that part of the letter set out at paragraph [30] of the judgment. [119] The Industrial Commissioner clearly did not misunderstand the submission, nor did she misunderstand which part of the letter Mr Ferris was relying upon, nor did she think that the letter was anything other than a letter of offer of employment from Woodlands. [120] The Industrial Commissioner’s decision not to regard the relevant statement in the letter as of importance is hardly surprising. The termination of Mr Ferris’s employment with Woodlands in 2009 and his employment with Forum-A occurred eight years before the letter was sent by Woodlands to Mr Ferris offering to again employ him. The question for the Industrial Commissioner was whether a letter which was written in 2017 had evidentiary value in the determination of Woodlands’ alleged intention, formed in 2009. The Industrial Commissioner concluded that issue against Mr Ferris. She concluded that the relevant statement just recorded what Woodlands then (in 2017) considered the situation to be. Such a conclusion was logical and was the obvious one to draw. [121] Many decisions have considered the particularity into which a judicial officer must descend explaining their decision.75 As explained by Muir JA in Drew v Makita (Australia) Pty Ltd,76 while general statements can be made and guidelines formulated as to what is to be expressed by way of reasons, ultimately, the detail to which a judge must descend in when exposing their reasoning depends on the nature of the issues for determination and the function to be served by the giving of reasons.77 [122] Here, Mr Ferris relied upon a particular statement made in a particular document and said that a particular inference could be drawn from that statement. The question then became whether the Industrial Commissioner drew the inference. She said that she would not draw the inference because she preferred another inference, namely that the statement was simply an expression of Woodlands’ understanding at that time of Mr Ferris’s entitlements. That inference was open and the Industrial Commissioner 75 Soulemezis v Dudley (Holdings) Pty Ltd. (1987) 10 NSWLR 247; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Flannery v Halifax Estate Agencies Ltd (2000) 1 WLR 377; Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, all considered and explained in Habibi Arehjan v Workers’ Compensation Regulator [2025] ICQ 23; and see also DL v The Queen (2018) 266 CLR 1. 76 [2009] 2 Qd R 219; following Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 386. 77 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at [59]. -- 29 of 31 -- 30 drew it. No further reasoning is necessary to explain why she did not draw the inference which Mr Ferris sought to have her draw. [123] That leaves submission three.78 This is most clearly a factual ground. [124] In the written submissions filed on Mr Ferris’s behalf, exhibit TF-05 is identified and the following is said about the document: (a) “…[it] provides a clear intent of [Woodlands] that they did not want to carry any liability with regards to long service leave from Forum-A Pty Ltd.”; (b) “…the said terms are a clear indication of [Woodlands] attempting to avoid its obligations under s 134 (6) (a) of the Act via the utilisation of such a waiver”; and then, finally (c) “….the Member has wrongly concluded the significant weight of the material evidence. Acting on that error, the appellant submits the Member has not appropriately turned their mind to the document…which would have provided that it was a waiver and a clear intent by the respondent to avoid any liability with respect to recognising service of the Appellant and in turn, the outstanding Long Service Leave that is owed”. [125] The difficulty with the submission is that there are clearly two competing inferences. The first is that the letter was part of some arrangement reached in 2009 to avoid the long service obligations. The alternative inference is that the letter does nothing more than record what Woodlands understands the position to be as at 2017; but that all liability up to that point has been discharged by Forum-A. [126] The Industrial Commissioner drew the inference that was not favourable to Mr Ferris. She gave cogent reasons for so doing.79 [127] There is no substance in ground (e) or the complaint made in ground (a) about the Industrial Commissioner’s handling of exhibit TF-05. Conclusions [128] Grounds (a), (c), (d) and (e) ought be dismissed.80 For the reasons I have explained, there is no substance in any of them. [129] Further, to the extent that those grounds raised errors of fact or mixed errors of fact and law, I would not give leave under s 557(2) of the IR Act to advance those grounds. The Industrial Commissioner heard evidence from several witnesses. They were cross examined. Findings were made based on the acceptance of that evidence. Acknowledging the advantage of the Industrial Commissioner in seeing and hearing the witnesses give evidence, there is no discernible factual error. The inferences that were drawn from the evidence appear logical and properly explained, and there is no reason to draw other inferences. [130] Ground (f) is established. The argument that establishes ground (f) was not raised before the Industrial Commissioner. Notwithstanding that fact, Mr Ferris ought to be able to 78 Part of the submissions in support of ground (a). 79 Primary judgment paragraph [101]. 80 Grounds (b) and (c) were not argued and ground (g) is not a ground of appeal. -- 30 of 31 -- 31 advance that argument on appeal given that the Court of Appeal’s decision in Programmed Integrated Workforce Ltd was not delivered at the time of the hearing of the present case before the Commission. [131] However, both parties ought to be given an opportunity to fully run and argue their respective cases on the question of the transfer of calling. It is necessary to allow the appeal and remit the matter to Industrial Commissioner Pidgeon for that purpose. [132] No parties are legally represented and, consequently, there are no costs issues. Orders [133] The following orders are made: 1. The appeal is allowed. 2. The proceedings are remitted to Industrial Commissioner Pidgeon: a. to determine whether there was continuity of employment of the appellant by virtue of the transfer of his calling; and b. to make orders consistently with whatever finding is made and the other findings having been made and recorded in Ferris v Woodlands H.R. Pty Ltd (No. 2) [2024] QIRC 172. -- 31 of 31 --