Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v CHR Employment Services [2003] QIRC 97 (2003) 173 QGIG 486

486 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 June, 2003 ###################################################################################################################### ## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland AND CHR Employment Services (No. B98 of 2003) COMMISSIONER FISHER 30 May 2003 Application for reinstatement – Preliminary jurisdictional points – Respondent contends applicant excluded employee – Industrial Relations Act s. 72(1)(c) – Respondent contends applicant not dismissed – Short term casual s. 72(8) – Definition of Transfer Schedule 5 – Clause 4.9.3 Transmission of Business-Engineering Award – State – Continuity of Service s. 69 – Criteria s. 72(8) – Definition of Employer s. 6(2)(a) – Case law – Identification or characterisation of the business of the employers – First employer characterised as provider of mining services – Second employer identified as the provision of labour to industries under a contract for profit – No similarity found to exist between the character of the first and second employer – Calling of first employer not transferred to the respondent – Recommendation 32 Report of the Industrial Relations Taskforce – Applicant found to be an excluded employee under s. 72 – Application dismissed. DECISION The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (the Union) has filed an application seeking the reinstatement of their member, Vincent Fenech, to his former position of Trades Assistant with CHR Employment Services Pty Ltd. Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (QCCI), appearing for the respondent, raised a preliminary jurisdictional point that Mr Fenech is an excluded employee pursuant to s. 72(1)(c) of the Industrial Relations Act 1999. It is this matter that is now before the Commission for determination. For completeness, I should add that QCCI also raised another jurisdictional argument that Mr Fenech was not dismissed by the respondent and has an ongoing employment relationship with them. QCCI acknowledged that this second jurisdictional argument would be pressed in the event the application proceeded to a hearing on the merits. The facts relevant to the determination of the first jurisdictional point are essentially agreed. They are as follows: • Fenech was engaged by Mindrill Mining Services (Mindrill) as a Trades Assistant on a casual basis from 7 November 2001 until 26 February 2002; • on 26 February 2002 Fenech, together with several other casual employees at Mindrill had their employment terminated. Mindrill had decided to not directly employ Fenech (and others) but to utilise labour hire staff; • Mindrill entered into an agreement with the respondent to supply labour to Mindrill; • Fenech, and some of the other casual employees, were offered employment with CHR Employment Services Pty Ltd on 27 February 2002; • on 28 February 2002 Fenech was assigned by the respondent to work with Mindrill; • initially, Fenech performed the same duties with the respondent that he had performed at Mindrill. He was given direction by the same person as when he was an employee with Mindrill; • at all times the terms and conditions of Fenech’s employment were those of the Engineering Award – State; • on 20 January 2003 Fenech ceased work at Mindrill; and • at the time Fenech ceased work at Mindrill he had worked directly for Mindrill for a period just in excess of 3 ½ months. He had been employed by the respondent at Mindrill’s site for approximately 11 months. QCCI Argument QCCI argued that Fenech is a short term casual employee within the meaning of s. 72(8) of the Act and is therefore excluded from s. 73 of the Act. QCCI contended that Fenech’s employment with the respondent is the relevant period of employment to be considered. Union Argument The Union argued that Fenech’s service with both Mindrill and the respondent should be taken into account. As a consequence, the period of employment exceeds one year and the applicant is not excluded from s. 73 of the Act. The Union relied on s. 69 of the Act – Continuity of service – transfer of calling; the definition of “transfer” in Schedule 5 of the Act and clause 4.9.3 Transmission of Business of the Engineering Award – State to support its position. Relevant Provisions of the Industrial Relations Act 1999 “69 Continuity of service – transfer of calling (1) A “transferred employee” is a person who 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’).”; “Schedule 5 ‘transfer’ of a calling includes the transmission, assurance, conveyance, assignment or succession of the calling – (a) either by – (i) operation of law; or -- 1 of 3 -- 13 June, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 487 (ii) agreement, including an agreement effected by a third person; and (b) either before or after the commencement of this Act.”. Conclusion It is common ground that in order for Chapter 3 – Dismissals of the Act to apply to Mr Fenech he must meet the criteria prescribed by s. 72(8) of the Act. It is also common ground that these criteria are cumulative (see Revamp Proprietary Limited v Coxeter (1998) 158 QGIG 473). The criterion that is in contention in this case is that which appears at s. 72(8)(a)(ii) viz “for several periods of employment during a period of at least one year.”. The matter for determination is whether Fenech was a transferred employee within the meaning of s. 69 of the Act. In the event Fenech is found to be a transferred employee then he is not a short term casual employee within the meaning of s. 72(8) of the Act and hence not excluded from s. 73 of the Act. The starting point for the determination of this matter is s. 69 of the Act. By virtue of s. 68 of the Act, s. 69 preserves an employee’s continuity of service with successive employers if the employee is a “transferred employee”, namely a person who 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”). In my view the calling that is transferred is that of the employer not the employee. The definition of “employer” at s. 6(2)(a) provides inter alia: “(2) The following persons are also employers – (a) a person carrying on a calling in which employees are usually employed, even though for the time being employees are not employed in it;”. It is clear from this definition that callings can be determined by reference to the employer. This view is also supported by the decision of Hall P in MIM Ltd v Bamford (2002) 171 QGIG 180. That case considered whether the AMEPKIU had the right to represent an employee (who was a member of that Union) in reinstatement proceedings in the Commission when the Union had, by order of the Commission pursuant to s. 45 of the Industrial Relations Act 1990, been excluded from representing under the Act the industrial interests of a particular class or group of employees who are eligible for membership of the Union. In the course of deciding the appeal, consideration was given to the meaning of “employee” in s. 5(1) of the (1990) Act, the meaning of “employer” in s. 6 and the meaning of “calling”. In that decision Hall P said, “By s. 5(1) ‘employee’ was defined to include ‘a person whose usual occupation is that of an employee in a calling’. In the same way ‘employer’ was defined to include ‘a person carrying on a calling in which employees are usually employed notwithstanding that for the time being employees are not employed therein’. (The current Act makes comparable provisions). Here, the Commission found that after the termination of his employment by Mount Isa Mines Limited Mr Bamford continued to be an ‘employee’ because he was usually employed in the calling of a boilermaker. That decision was correct. But the Commission was required to go further and acknowledge that Mr Bamford’s usual occupation was in the calling of a boilermaker in the services of Mount Isa Mines Limited in the (relevant) designated area. The necessity to take that step arises from the definition of ‘calling’ in s. 5 of the Industrial Relations Act 1990 to mean (not include) ‘any manufacture, trade undertaking, vocation, craft of occupation and any section thereof.”. In the matter of ALHMWU and Wilson Parking Australia 1992 Pty Ltd (2002) 170 QGIG 465, the Commission as constituted was dealing with an application for the recovery of wages, viz, long service leave, for a car park attendant who had worked for a number of car park operators from June 1989 to June 2001. In that matter the Union concerned relied on s. 69 of the Act and the definition of transfer to argue that the attendant’s continuity of service was preserved and thus an entitlement to long service leave existed. In that decision I considered whether the reference to “calling” in s. 69 was that of the employee or that of the employer. I concluded that the proper approach was to consider the calling of the employer. This aspect of the decision was supported by Hall P in the appeal decision (2002) 171 QGIG 323 when he said, “It was that combination of circumstances which, without gap in time, led to Wilson Parking 1992 Pty Ltd conducting the ‘undertaking’ (or ‘calling’) previously conducted by Australia Car Parking Australia Pty Ltd.”. (at 326). The next question is what is the calling that is said to have been transferred? The Union argued that it was Fenech’s calling of Trades Assistant. In my view this argument cannot succeed for two reasons. Firstly, that argument is inconsistent with the decision of the President in both the Wilson Parking and MIM cases referred to earlier. Secondly, it is doubtful that “Trades Assistant” is a calling but rather a description of work (see Re The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia, Queensland Division, Union of Employees (1972) 79 QGIG 718). If the calling of the employee Fenech was not transferred, was the calling of the employer? In the Wilson Parking appeal decision, Hall P said, “Counsel for the respondent rightly stresses that s. 69 of the Industrial Relations Act 1999 and the definition of ‘transfer’ were not the subject of consideration in any of the federal cases and that the language of s. 69 and the language of the definition is not the language of the Workplace Relations Act 1996 (C’wth). However, because ‘transfer’ is defined inclusively there is no apparent reason for denying the application of the authorities referred to.”. One of the authorities that Hall P applied was the decision of the High Court in PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648 where the following was said: “[15] 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.”. Applying those principles to the present matter, the first step is to determine the identification or characterisation of the business of the first employer, Mindrill. From the limited information before the Commission on this point, I would think that the business of Mindrill could be characterised or identified as the provision of mining services. The business of the second employer, CHR Employment Services Pty Ltd, could be characterised or identified as the provision of labour to industries under a contract for profit. This characterisation is consistent with the characterisation of another labour hire firm given by the Full Bench of the Australian Industrial Relations Commission (AIRC) in Geelong Grammar School v CFMEU & Anor (PR 925746). Comparing the businesses of Mindrill and the respondent the conclusion is easily drawn that no similarity exists between the character of the first and second employers. -- 2 of 3 -- 488 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 June, 2003 While Hall P did not determine the point in the Wilson Parking matter, he suggested that the following approach proposed by the Full Court of the Federal court of the Federal Court in Stellar Call Centres Pty Ltd v Communication, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (2001) 106 FCR 302 at (30) might also be appropriate: “The High Court must be taken impliedly to have rejected the suggestion of the Full Court in Finance Sector Union v. PP Consultants at 352 [33] that ‘it is logical to focus on the nature of the activities undertaken by the two employers and the question whether there is any material change in the nature of the employees’ duties or working conditions’. As we understand it, even if there be complete identity between the duties and working conditions of the relevant employees of both employers, that will not attract the application of s. 149(1) unless the business in which those duties are performed for the new employer is in substance identical in character with the business, or a distinct part of the business, of the presumptive transmittor.”. If this approach is to be applied then the same conclusion is reached, that is, that the character of the two businesses are not, in substance, identical. Given that I have determined that the calling of Mindrill have not been transferred to the respondent I find it unnecessary to consider the question of agreement which arises at paragraph (ii) of the definition of transfer. Finally, I should comment that there is no evidence before me to suggest that the circumstances of Fenech’s change of employer were contrived. This consideration would become relevant in light of Recommendation 32 of the Report of the Industrial Relations Taskforce of December 1988. That recommendation proposed an investigation into the widening of the definition of transfer of business to deal with contrived circumstances where employee entitlements are lost. In all of the circumstances I determine that s. 69 of the Act is not applicable to the present matter. Mr Fenech is thus an excluded employee under s.72 of the Act. Order accordingly. G.K. Fisher, Commissioner. Hearing Details: 2003 1 May Appearances: Mr E. Moorehead for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. Ms S. Lindsay of Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers, on behalf of CHR Employment Services. -- 3 of 3 --