Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Wilsons Parking Australia 1992 Pty Ltd [2002] QIRC 197 (2002) 170 QGIG 465

23 August, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 465 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for unpaid wages Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Wilsons Parking Australia 1992 Pty Ltd (No. W50 of 2000) COMMISSIONER FISHER 13 August 2002 Application for unpaid wages – Long service leave – Transferred employee – Transfer of a calling – s. 68, 69 and Schedule 5 Industrial Relations Act 1999 – s. 42 – Continuous service – Calling – s. 17(16) Industrial Conciliation and Arbitration Act 1961 – Case law – s. 14B and s. 32 D (1) Acts Interpretation Act 1954 – Report of Industrial Relations Taskforce 1998 – Recommendation 32 – Applicant not transferred employee – No entitlement to long service leave – Application dismissed. DECISION The Australian Liquor Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) has filed an application seeking an order that Wilson Parking Australia 1992 Pty Ltd (Wilson Parking) pay to Eamonn Burke the sum of $4,518 80, such sum being payment of unpaid long service leave. The matter is not straight forward. Mr Burke was employed as a Car Park Attendant in the same multistorey car park at 118 Charlotte Street, Brisbane for almost twelve years. That car park, and indeed most other multistorey car parks, operates in a similar way. The owner of the building in which the car park is situated, in this case National Mutual which became AXA, leases the car park to a car park operator. It is usual practice for the building owner to call for tenders to be submitted for the operation of the car park. The successful tenderer then enters into a lease for the operation of the car park facilities for a number of years. Towards the expiration of the lease, the building owner repeats the process. The effect is that the car park operator in one building may change with each new tender. Set out below are the various operators of the car park in which Mr Burke worked and his periods of employment with each of those operators: Kings Parking Company Queensland Pty Ltd – 9 June 1989 to 10 September 1992; Wilson Parking Australia 1992 Pty Ltd – 11 September 1992 to 31 March 1993; KC Melbourne Pty Ltd trading as KC Parksafe – 1 April 1993 to 6 November 1998; Australian Car Parking Pty Ltd t/a Care Parking and then Care Park – 7 November 1998 to 30 June 1999; and Wilson Parking Australia 1992 Pty Ltd – 1 July 1999 to 1 June 2001. Evidence was given by Mr Burke and Barton Staines the State Manager of Wilson Parking. Reference will be made to their evidence throughout this decision. The matter for determination is whether Mr Burke is a transferred employee within the meaning of s. 69 of the Industrial Relations Act 1999 so as to establish continuity of service and hence an entitlement to long service leave. Applicant’s Case The ALHMWU submitted there are four ways that Mr Burke’s changing of employment between various employers can be seen as a transfer of a calling within s. 69 of the Act. These are: (i) there is some evidence of an agreement directly between the former employers and the new employer each time the car park operator changed. (ii) there has been an agreement effected by a third party, namely the landlord of the car park, in this case AXA. (iii) the calling in question is not just Mr Burke’s occupation of car park attendant but is also the undertaking of the operation of the car park. In that way Mr Burke’s re-employment was part of the transfer of the undertaking of the car park operations on that site. (iv) a transfer of a calling can happen by means other than by operation of a law or by agreement. The ALHMWU submitted that it was not necessary for all of these contentions to be established to demonstrate an entitlement to long service leave. The establishment of any one of them would be sufficient to ensure that Mr Burke has an entitlement. Each of these arguments is addressed in turn. (i) Evidence of Agreements Mr Crank, who appeared for the ALHMWU, took the Commission to the evidence about what happened each time a new car park operator secured the lease. He relied on a decision of the Industrial Court in Glengair v Walsh (1997) 156 QGIG 534 to argue that the burden of proof in establishing employment is not continuous rests with the employer. In relation to the first “transfer” from Kings Parking to Wilson Parking, Mr Crank referred to Mr Burke’s evidence that the manager of Kings Parking told him to go to work the day after his termination with Kings and he should keep his job. Mr Crank submitted that such advice would not have been given unless the former operator had made an agreement with the new operator about Mr Burke retaining employment. Mr Crank thus argued that this was evidence of an agreement between the former employer and the new employer to transfer the occupation of Mr Burke. In terms of the second change from Wilson Parking to KC Park Safe, Mr Crank referred to Appendix 1 of Mr Burke’s affidavit, which is a letter from Wilson Parking to Mr Burke. The relevant paragraph is: “I have spoken to the directors of National Mutual Property Services and KC Parksafe and I am assured that all car parking staff will be considered for employment with KC. I will arrange a meeting as soon as possible to introduce you to KC’s State manager where terms and conditions of employment can be discussed.”. Mr Crank submitted that this letter was evidence of an agreement between the former and new operators to employ Mr Burke. As the employment occurred without Mr Burke being interviewed or otherwise assessing his suitability, there must have been some agreement in place. -- 1 of 7 -- 466 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 August, 2002 The third change in car park operator was from KC Parksafe to Care Park. Mr Crank referred to Mr Burke’s evidence that the Manager of KC Parksafe told him that he had discussed Mr Burke’s continuing employment with Care Park and that “everything would be ok.”. Mr Crank said that such advice would not have been given unless there was an agreement between the former and incoming operators. Again, this was said to be evidence that the calling transferred. The last change of car park operator was from Care Park to Wilson Parking. The evidence from Mr Burke about this change was that Knight Frank, representing the landlord AXA, wrote to the State Manager of Care Park advising that “Wilson Parking are prepared to interview staff for employment and would appoint suitably qualified staff on the basis of a maximum of three months probationary period…”. Mr Crank pointed out that the interview did not occur and that Mr Burke simply commenced with Wilson Parking. He said this was indicative of an agreement between the former and new employer. In summary, Mr Crank’s submission was that each time there had been a change of car park operator, there had been agreement between the former and new operator to employ Mr Burke. This agreement may not have been in writing or formally disclosed to Mr Burke but his commencement of employment immediately the new operator started, without interview or job application, is strongly suggestive of an agreement to employ him. Accordingly, in the applicant’s submission, a transfer of a calling within the meaning of s. 69 and the definition of “transfer” occurred therefore establishing Mr Burke’s entitlement to long service leave. (ii) Third Party Agreement The definition of “transfer” of a calling in Schedule 5 of the Act includes reference to “agreement, including an agreement effected by a third person”. In this respect, Mr Crank argued that the “third person” was the lessor. Reliance was placed on clause 8.18 of the lease agreement made between Permanent Trustee Australia Limited (as trustee for the National Mutual Property Trust) and Wilson Parking Australia 1992 Pty Ltd (Attachment 2 to the affidavit of Barton Staines). Subclause (b) of clause 8.18 requires that the Tenant (Wilson Parking) ensure: “(b) that an adequate number of employees who have been satisfactorily trained and are competent to operate the business are employed.”. Mr Crank said that Mr Burke’s employment by Wilson Parking was in fulfilment of the lease agreement. Consequently, the transfer of Mr Burke’s occupation was effected by way of an agreement by a third person. Mr Crank noted that the words “including an agreement effected by a third person” were new to the Industrial Relations Act 1999 and neither the Minister’s Second Reading Speech nor the Explanatory Memorandum assisted with an understanding of what is meant by this clause. Reference was made in the Second Reading Speech to a “business changing hands”. This was interpreted by Mr Crank to include the situation of car park operators entering into a lease. Mr Crank also submitted that it was Parliament’s intention in adding the new clause to ensure that employees engaged in contracting industries are not denied the benefits of long service leave. (iii) Transfer of Undertaking Mr Crank submitted that the calling that was transferred was not just the occupation of Car Park Attendant but was also the undertaking of the operation of the car park. In this respect the Union again referred to clause 8.18 of the lease which required the lessee to ensure that the business of a commercial car park operator is carried out competently. According to the Union Mr Burke’s employment with Wilson Parking was in fulfilment of this term of the lease. Mr Crank said there was no reason to believe that this term of the lease would have varied from lessee to lessee given that AXA was at all times the lessor. To support his argument, Mr Crank relied on the decision in Glengair. He said that decision was authority for the proposition that where employment continues on the transfer of an undertaking, there has been a transfer of an occupation. (iv) Agreement not Required The fourth submission put by the Union went to the definition of “transfer” in Schedule 5 of the Act. Reference was made to the fact that the definition does not state that a transfer of callings means such things as transmission etc. but states that it includes those circumstances. The word “includes” should be read as meaning “is not limited to” thus the construction of the definition on s. 69 allows for transfers of occupations or undertakings to occur by means other than by operation of law or by agreement. The Commission was urged to adopt an ordinary meaning of the word “transfer”. Given that Mr Burke had been employed in the same physical premises, performing the same duties in the same kind of business for twelve years, and the only thing that had changed was his employer because of tenders won and lost, Mr Crank submitted that Mr Burke’s re-employment by successive employers should be seen as a transfer of a calling within the ordinary meaning of the word “transfer”. To support this argument Mr Crank relied on a decision of the Industrial Court in Rose v Robert John Mckillop and Thelma Mckillop (1960) 45 QGIG 911 as authority that the services of an employee were transmitted from each employer to the next employer in circumstances where each of these employers continued to employ the employee without any interruption in his service. Finally, the Union argued that s. 69 of the Act is beneficial legislation and should be construed beneficially. Mr Crank submitted that the Union had established that Mr Burke had an entitlement to long service leave and accordingly, the Commission should grant its application. Respondent’s Case In summary, the respondent argued that for Mr Burke to have been a transferred employee of Wilson Parking within the meaning of s. 69 of the Act, he must have become an employee because of the transfer of a calling to Wilson Parking from Care Park. Wilson Parking submitted that Mr Burke was not a transferred employee because: (i) there was no transfer of a calling, within the meaning of the Act, to Wilson Parking from Care Park; and (ii) Mr Burke did not “become” an employee because of a transfer of a calling. Mr Muir, who appeared for the respondent, in referring to the Union’s claim that a “calling” was transferred from Care Park to Wilson Parking, said that the “calling” can only mean the undertaking of Care Park, that is, its business of operating car parks, or a section of that business, being its business of operating the car park located in the premises situated at 118 Charlotte Street, Brisbane. Mr Muir said that s. 69(1) of the Act refers to the transfer of a calling “from” one employer “to” another with the implication that the calling is something of the employer, not the employee. Section 69(2) of the Act was said to indicate that a calling may be transferred independently of the employee, that is while the employee is not employed by the former employer. -- 2 of 7 -- 23 August, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 467 Relying on the Report of the Industrial Relations Taskforce, December 1998, the Minister’s Second Reading Speech and the Explanatory Memorandum that accompanied the Industrial Relations Bill, Mr Muir said that the intention of s. 69 is to afford protection to employees “on transfer of a business” and “when a business changes hands”. He submitted that nowhere in any of those three sources is it apparent that the intention of the new s. 69 was to preserve an employee’s continuity of service generally where that employee ceased employment with one employer and then began employment with another employer, where both employers conducted the same kind of business, and the employee performed the same kind of duties for both employers. The intention of the legislation, as expressed in the Taskforce Report, the Second Reading Speech and the Explanatory Memorandum, it was said, was to afford protection to employees upon a particular event, that event being where the business of the employee’s employer was transferred or changed hands. Mr Muir argued that a transfer of a calling within the meaning of s. 69 of the Act occurs by operation of law or by agreement, including an agreement effected by a third party. None of those circumstances were said to apply in the present matter. The decision of the Industrial Court in Tinniswood v Martin (1958)43 QGIG 1019 explained that the term “by operation law” means that the transmission occurred by force of law and without any agreement. The phrase could refer to a transmission or succession on intestacy or by reason of bankruptcy law. There is no argument in this case about whether a transfer occurred by operation law. The respondent also disputed the existence of any agreement, including an agreement by a third person, that effected a transfer of a calling. In this regard, Mr Muir said there was no agreement of any kind between Care Park and Wilson Parking. The only agreement that was in existence was that between Wilson Parking and Permanent Trustee Australia Limited in the form of the lease on the car park premises. The lease granted to Wilson Parking rights over property i.e. the car park. Although the lease was granted on the condition that the premises would be used only for the operation of the car park, in executing the lease with Wilson Parking, the lessor was not transferring to the lessee: (i) the undertaking of the Care Park, or a part of it; (ii) any car parking business; or (iii) any calling i.e. the lessor did not transfer any craft, manufacture, occupation, trade, undertaking or vocation, or part thereof. The evidence of Mr Staines showed that the terms and conditions of the lease were agreed on the basis of a proposal by Wilson Parking about the way it intended to conduct the car park. This proposal was different to the way Care Park operated the car park, for example, it included reduced hours of operation. In this way, Mr Muir submitted, Care Park’s right to occupy premises and conduct business in those premises was not transmitted, assured, conveyed or assigned to Wilson Parking. Further, it was submitted, Wilson Parking did not succeed to Care Park’s right. Mr Muir also took issue with the contention that Care Park’s calling was transferred to Wilson Parking. He said that upon the expiration of its lease, Care Park’s business in the car park premises terminated. Consistent with usual practice, Care Park had to vacate the premises, terminate the employment of its staff and remove its property from the premises. Although the business of Care Park continued at other premises, its business did not continue at 118 Charlotte Street, Brisbane. According to Mr Muir, all of this shows that there was no transfer of the business of Care Park to either the lessor or to Wilson Parking. In addition, there was no act by Wilson Parking that amounted to an acceptance of the business of Care Park. In accepting the lease it commenced operation of its own business in accordance with its own established operating procedures, under its own brand, at its own direction and by employing staff of its choice. Wilson Parking did not acquire the business of Care Park, its assets, liabilities or employees. Nor did it acquire Care Park’s lease over the premises. Finally, Mr Muir said that the transfer could not have occurred by means of the lessor because it did not have the business of Care Park to transfer as Care Park had not transferred its business to the lessor. The respondent submitted that because Wilson Parking conducted the same kind of business as Care Park and did so in the same location is insufficient to show that there was a transfer of a calling from Care Park to Wilson Parking. Minister of State for Employment, Workplace Relations and Small Business v Community & Public Sector Union (2001) FCA 316 (2001) 109 FCR 303. That Mr Burke worked for Care Park and Wilson Parking without any break between those distinct periods of employment, and performed the same kind of work (i.e. that of a car park attendant) was also not enough to show that there was a transfer of a calling from Care Park to Wilson Parking. Stellar Call Centres Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (2001) FCA 106 FCR 302. The “substantial identity of activities” test is not of itself a sufficient test to determine if there has been a succession, transmission or assignment of a business. Australian Rail Tram & bus Industry Union v Torres Transit Services Pty Ltd (2000) FCA 1683 . The respondent placed detailed submissions about the federal approach to determining whether there has been a transmission of business. The Commission’s attention was drawn to the cases cited above together with the High Court decision in PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) HCA 59 (2000) 201 CLR 648. These authorities were relied on and distinguished from the recent decision of Gray, J in Health Services Union of Australia v Gribbles Radiology Pty Ltd (2000) FCA 856. The second major plank to the respondent’s submissions was that Mr Burke did not become an employee of Wilson Parking because of the transfer of a calling. To be a transferred employee within the meaning of s. 69, Mr Burke must have “become” a transferred employee “because of” the transfer of a calling from Care Park to Wilson Park. Even if there was a transfer of a calling from Care Park to Wilson Parking, which the respondent denied, Mr Burke did not “become” a transferred employee because of any transfer of calling. The lease did not transfer to Wilson Parking the employment of any of the Care Park employees (including Mr Burke) nor did it oblige Wilson Parking to employ them. Mr Burke became an employee of Wilson Parking because Wilson Parking offered him employment and he accepted that offer of employment. The respondent also highlighted concerns about the effects of granting the application. These were: (1) Wilson Parking had no opportunity to set off the value of Mr Burke’s accrued entitlement to long service leave with Care Park, because it had no dealings with Care Park; (2) Mr Burke’s former employers gained the benefit of Mr Burke’s service over the following periods of time, without having to make any payment towards Mr Burke’s long service leave: (3) Mr Burke’s recent employment with Wilson Parking was for the period of 1 year and 11 months. Despite this, from Wilson Parking he would gain the benefit of almost 12 years worth of long service leave. (4) whilst Mr Burke will gain the benefit of continuity of service, usually enjoyed by employees who serve the same employer or the same “business”, Wilson Parking will not have received: -- 3 of 7 -- 468 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 August, 2002 (a) the benefits of an employer who had engaged Mr Burke for 12 years, that is continuity and stability of service; and (b) the benefits usually taken by the transferee of a business. According to the respondent the success of this application would result in a major change to employment practices in the car parking industry and probably other industries based on contracts and tenders (e.g. cleaning industry, security industry). Operators who successfully tender for leases will be unwilling to engage employees of incumbent lessees if this means taking the existing employees with the burden of their accrued entitlements. At the very least, only existing employees with minimal service with their former employer will be considered for new employment. In addition, should this application succeed and Mr Burke’s service with all of his previous employers be considered continuous with his employment with Wilson Parking for the purpose of calculating a long service leave entitlement, such a decision would amount to a recognition of some form of long service leave portability. This is outside the purpose and intent of s. 69. In summary, the respondent submitted Mr Burke was not a transferred employee within the meaning of s. 69. There was no transfer of calling from Care Park to Wilson Parking. Mr Burke did not become an employee of Wilson Parking because of any transfer of calling. Wilson Parking is therefore not liable to pay Mr Burke any accrued long service leave entitlement because no such entitlement arose as a result of his employment with Wilson Parking. Conclusion An employee’s entitlement to long service leave derives from Chapter 2 Part 3 of the Industrial Relations Act 1999. Section 42 of the Act defines continuous service of an employee, other than employees in the sugar industry and meat works, to mean “the employee’s continuous service with the same employer (whether wholly in the State, or partly in and partly outside the State). In terms of the present matter, the employment history of Mr Burke shows that four employers had employed him. His employment was continuous in that he had ceased employment with one employer on one day and commenced employment with a new employer on the next. While Mr Burke’s employment was continuous it was not continuous with the same employer. Part 6 of Chapter 2 provides continuity of service and employment provisions. Section 68 of the Act, which comes within Part 6, describes how the part applies and relevantly in subsection (1) provides: “(1) This part applies when working out an employee’s rights and entitlements under this Act or an industrial instrument by prescribing when the employee’s continuity of service is not broken.”. Section 69 of the Act deals with an employee’s continuity of service where there has been a transfer of a calling. Thus, although s. 42(b) refers to “continuous service with the same employer”, ss. 68 and 69 enable an entitlement to long service leave to be established for a transferred employee. That is, these sections meet the cases where service is continuous but the service is not with the same employer. (Tinniswood v Martin supra). As mentioned s. 69 deals with the situation of an employee who is transferred as a result of a transfer of a calling. The term “transfer” of a calling is defined in Schedule 5 of the Act. It is useful to set out both s. 69 and the definition of “transfer”. “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’). (2) Even if a person is dismissed by the former employer before the transfer of calling, the person is taken to be a transferred employee if – (a) the person is employed by the new employer after the transfer; and (b) the employee – (i) was dismissed by the former employer within 1 month immediately before the transfer; and (ii) is re-employed by the new employer within 3 months after the dismissal. (3) The transfer of the calling is taken not to break the transferred employee’s continuity of service. (4) A period of service with the former employer (including service before the commencement of this section) is taken to be a period of service with the new employer. (5) In this section – ‘dismissed’ includes stood-down.”. “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 (ii) agreement, including an agreement effected by a third person; and (b) either before or after the commencement of this Act.”. The questions for consideration in the present matter are: (i) whether there has been a transfer of a calling to a new employer from another employer as a result of an agreement, including an agreement effected by a third party; and (ii) whether Mr Burke became an employee of Wilson Parking because of the transfer of a calling to it from another employer. -- 4 of 7 -- 23 August, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 469 “Calling” is defined in Schedule 5 of the Act to mean – “(a) a craft, manufacture, occupation, trade, undertaking or vocation; or (b) a section of something mentioned in paragraph (a).”. Section 69(1) of the Act refers to the transfer of a calling to the new employer from another employer. The Union submitted that the calling in question was primarily Mr Burke’s occupation of Car Park Attendant, however, the undertaking of the operator of the car park could also be considered to be the calling. This latter submission was more consistent with that of the respondent who said that s. 69(1) implies that the calling is something owned by an employer and able to be transferred to another employer. It is not the calling of the employee that is in issue. In this case the relevant definition of calling is “undertaking” and the undertaking is that the business of operating car parks. As the definition permits a section of an undertaking to be considered as a calling, the undertaking is more properly defined as the car park at 118 Charlotte Street, Brisbane. The word “ undertaking” was first inserted into the definition of calling in the Industrial Relations Act 1990. There appears to be sufficient uncertainty about the matter to allow resort to extrinsic materials. In the same way that Hall, P found in Harrison v Electcom Limited (2000) 163 QGIG 375 that s. 14B(1), (2) and (3)(b) of the Acts Interpretation Act 1954 authorise resort to the Minister’s Second Reading Speech, the Explanatory Memorandum and the Report of the Industrial Relations Taskforce of December 1998, the Commission has had regard to the relevant parliamentary materials as well as the Report of the Committee of Inquiry into the Industrial Conciliation and Arbitration Act 1961-1987 of Queensland, November 1988 (the Hangar Report). None of these documents provide any guidance about the meaning of this term and the reason it was inserted into a definition that had largely remained unchanged for many years. In Reference under Electricity Commission (Balmain Electric Light Co. Purchase) Act 1950 (1957) NSWSR 100 “undertaking” was described as being “a word of variable meaning . . . Basically the idea which it conveys is that of a business or enterprise.”. On the basis that the word undertaking in the definition of calling is accepted to include business or enterprise, then the operations of a car park can be considered to be an undertaking. Although in Tinniswood the Industrial Court was considering an earlier Act provision, it was dealing with a case where a transmission of business was being argued. The decision of the Industrial Court indicated that it was the calling of the employer that had to be examined to determine whether a transmission of business occurred. In light of the decisions cited above, I consider the respondent’s approach to be correct and that the calling is the operation of the car park at the said location. With that is accepted as the calling, the next matter that needs to be examined is whether that calling transferred from one employer to another as a result of an agreement. The Union submitted three scenarios where a transfer of a calling might arise within s. 69 of the Act viz: (i) by agreement directly between the former employer and the new employer; (ii) by agreement effected by a third party, in this case the landlord; (iii) by transfer of the operations of the car park. The Union submitted that the onus was on the respondent to prove the service was not continuous (Glengair v Walsh supra). The Commission does not accept this submission. The decision in Glengair related to s. 17(16) of the Industrial Conciliation and Arbitration Act 1961. Section 17 of that Act dealt specifically with long service leave and s. 17 (16) contained an express provision that matters averred to in the complaint were taken to be proved unless the employer proved the contrary. This application is not brought by way of complaint which is a specific process in the Industrial Magistrate’s Court. This application is brought under s. 278 of the Industrial Relations Act 1999 and it does not have an equivalent provision to the paragraph referred to and contained in s. 17(16) of the earlier Act. Neither does Chapter 2 Part 3 of the present Act, which sets out the Long Service Leave provisions. The relevant provision is Rule 97 of the Industrial Relations (Tribunals) Rules 2000 which provides that the applicant has to prove, on the balance of probabilities, Mr Burke’s service was continuous. The evidence before the Commission about whether there was any agreement to continue Mr Burke’s employment was from Mr Burke and Mr Staines, the State Manager for the last car park operation for which Mr Burke worked. There is no oral evidence from Mr Burke’s former employers. The “evidence” such as it is, is presented by way of letters received by Mr Burke from his former employers at the expiration of their lease or, in one case, by the agent of the landlord. The periods of Mr Burke’s employment with the various car park operators show that his service has been continuous. This is not conclusive of agreements existing between former operators and incoming operators. The letters attached to Mr Burke’s statement show that his employment was terminated by each operator. They said they would talk to the new operator to arrange an interview or otherwise secure employment, but none of the evidence from Mr Burke establishes that the former operators had an agreement with the incoming operator for him to be employed. Nowhere in the available evidence is there any indication of a commitment to, a guarantee of, or an agreement to future employment. The evidence of Mr Staines (although he was not directly involved in Mr Burke’s employment) is that it is common for recommendations on staff to be given by the former operators to the new operator but it is not the practice to enter into agreements between operators on such matters. Moreover, the new operator’s particular business exigencies may prevent it from employing staff who are recommended. For example, the new operator may have excess staff from other car parks that it wishes to deploy in the operation for which it has secured a lease or changes in the opening hours of the newly leased car park may prompt a reduction in staff numbers. Wilson Parking employed Mr Burke in 1999 as a result of a recommendation by Care Park and observance of his work performance by Wilson Parking while Mr Burke was still an employee of Care Park. In Tinniswood, the Industrial Court said: “The mere fact that a subsequent employer of an employee, without any interruption of time, carries on a certain business at a particular place after a previous employer of that employee had carried on the same type of business at the particular place does not constitute a transmission from one to the other unless it be by agreement between the previous and subsequent employer or by operation of law. To constitute a transmission there must be some definite legal nexus or privity between the previous and subsequent employers (the alleged predecessor and the alleged successor).”. (p. 1021) In the present matter there is no evidence of any legal nexus between Care Park and Wilson Parking or between Care Park and the former operators of the car park There is also insufficient evidence of dealings between the former and new operators of the car park to find that any agreement existed between them to transfer the employment of Mr Burke. Moreover, the evidence does not establish any agreement between the former and new car park operators to transfer the undertaking. -- 5 of 7 -- 470 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 August, 2002 The Industrial Court considered an application for long service leave under the Industrial Conciliation and Arbitration Act 1961-1976 for an employee in circumstances where there had been a change in the lessee of certain premises. The case of Saunders v R.O.F. Hoole (1980) 104 QGIG 40 concerned the employment of Hoole by Saunders as a butcher for a brief period from 10 February 1977 when Saunders acquired the right and did occupy certain premises. Until the previous day, the premises had been occupied by Hoole’s former employers who also carried on a butchering business there. This occupation of the premises as tenants at will had been brought to an end on 9 February by the action of the lessor. In that case the Industrial Magistrate found that each of the employers derived the right to occupy the premises from the same lessor and hence saw a sufficient legal nexus to create a transmission by operation of law. In the appeal decision, the Industrial Court noted that the Industrial Magistrate found there were no dealings between the two employers and hence there was no transmission by agreement. The Industrial Court also found that there was no basis for deciding that the law so operated as to effect a transmission. This case is on point with the present matter and is authoritative. In its submissions outlined earlier the respondent clearly set out what happens when a lease expires and a lease is granted to a new operator. The former operator terminates all staff and removes all of their property from the premises. The physical fittings of the car park remain but the building owner, not the car park operator, owns these. The new operator brings in its own operating procedures and if necessary, staff. In this way there is no evidence that the undertaking of the car park operations transfers from the old operator to the new operator. The question of what is meant by “agreement, including an agreement effected by a third party”, received some attention in the submissions of both the Union and the respondent. There appears to be sufficient lack of clarity to warrant resort to extrinsic materials. Both parties submitted that neither the Minister’s Second Reading Speech nor the Explanatory Memorandum assisted with an interpretation. Relying again on the decision in Harrison and Electcom regarding resort to extrinsic materials, I intend also to refer to the report of the Industrial Relations Taskforce of December 1998. Nothing of relevance appears in Chapter 4.1.3 General Employment Conditions. Chapter 4.3 addressed the issue of the protection of employee entitlements especially in the face of transfer of business or insolvency. Recommendation 32 states: “That there be further legal investigation of the implications of widening the definition of transfer of business to deal with contrived circumstances where employee entitlements are lost.”. (p. 57) As the definition of transfer (albeit transfer of a calling) was extended to include the clause, “including by an agreement affected by a third person” it seems reasonable to conclude that this was intended to respond to Recommendation 32. These circumstances do not apply in the present matter. The Union argued that the agreement effected by a third person is that effected by the lessor. There is no evidence before the Commission that points to the building owner or the lessor requiring Mr Burke to be continued in employment. The invitation to Wilson Parking to submit an expression of interest to lease the car park, prepared by Knight Frank, does not include any provision for employees of the current operator to be employed by the successful lessee. While the lease signed by Wilson Parking requires competent and trained employees to be engaged – and there is no argument that Mr Burke fell within this description – this cannot be construed as an agreement between the lessor and Wilson Parking that Mr Burke be employed. There is nothing in the lease, as there are with some contracts, which imposes a condition that the new car park operator employ the staff of the previous operator. It is usual business practice that where such a condition was imposed, the tenderer would adjust its price to take account of the accrued employee liabilities that it would assume on employment of the employees of the former operator. This did not occur in this case. In the same vein, the letter from Wilson Parking to Mr Burke giving notice of the termination of his employment on 31 March 1993, said that the Manager of Wilson Parking had been assured by the directors of National Mutual Property Services that all car parking staff will be considered for employment with KC. Again, this cannot be construed as a guarantee of or agreement to employment. Section 32 D (1) of the Acts Interpretation Act 1954 provides that “In an Act, a reference to a person generally includes a reference to a corporation as well as an individual.”. It may be arguable that the change to the definition of calling was intended to capture those circumstances described above where a company letting a contract or tender requires the new contractor or successful tenderer to employ the staff of the previous contractor. In this case, the lessor did not require those tendering to employ the employees of the previous lessee and there was no such condition contained in the either the invitation to tender or the lease.. For these reasons I do not consider that the change to the definition of transfer assists the Union’s case. The Commission must also consider whether Mr Burke became an employee of Wilson Parking because of the transfer of a calling to it from another employer. Section 69(2) of the Act makes provision for employment to be continuous where an employee has been terminated by an employer before the transfer of a calling and the employee is employed by the new employer within three months after the dismissal. Even in that case, a transfer in the calling must have occurred to establish continuity. I have already found that the calling did not transfer from Care Park to Wilson Parking. It follows then that Mr Burke could not become a transferred employee within the meaning of s. 69 of the Act because of a transfer of a calling to the new employer from the former employer. Mr Burke became an employee of Wilson Parking because it decided to offer him employment. The Union argued that the definition of transfer in Schedule 5 of the Act was not exhaustive and that transfer should be given its ordinary meaning particularly in circumstances such as those of Mr Burke where he had continuous service with a series of employers. The decision in Rose v McKillop (supra) was relied on to support this contention. In that case the Court found that “[I]n each instance an employer was carrying on a retail butchery business in a certain shop premises. Each employer ceased to carry on that business and was succeeded in the carrying on in the same business in the same shop premises without any interval of time, by another employer. Each of these employers continued to employ William Rose without any interruption in his service in that retail butchery.”. (at 912). The Court found that in that case there had been a transmission of the service by the employee from one employer to another. The Union argued that given the similarity in facts to the present matter, Rose should be accepted as authority that a transfer occurred in the case of Mr Burke. The respondent sought to distinguish Rose from the present matter on a number of grounds including the lack of evidence from the employers and in fact the paucity of evidence that is recited in the decision. The respondent noted that this decision stood in contrast to the decision of the same members of the Industrial Court in Tinniswood where no transmission was found to occur. The respondent also commented on the statement of the Court that the “transmission was constituted by transfer of his services from one employer to another by agreement between each new employer and William Rose.”. Mr Muir noted that the judgment contains neither reasoning to explain how this conclusion was arrived at nor any evidence to support the conclusion. In addition the “transmission” referred to was a transmission of the service of the employee. The respondent argued that this would be distinguished from s. 69 of the present Act where an entitlement to long service leave is contingent upon showing there has been a transfer of a calling. I agree that Rose can be distinguished for the reasons outlined by the respondent. In addition, the decision in Saunders deals specifically with a case involving a change of employers due to actions of the lessor. It is the more relevant decision. The Union’s argument that the term “transfer” should be given its ordinary meaning and not be limited to the operation of law or by agreement is not supported by the construction of the definition as it appears in Schedule 5 of the Act. The list of ways in which a transfer of a calling may occur is not exhaustive, but, irrespective of the method of the transfer, it is still limited by the operation of law or by agreement. -- 6 of 7 -- 23 August, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 471 Finally, the Union argued that the Act is beneficial legislation and should be construed beneficially. Contrary to this argument the respondent outlined the unfairness that would accrue to it if the application was successful and submitted the Union was attempting to introduce portability of long service leave by stealth. The car parking industry is akin to other industries based on contracts and tenders, e.g. cleaning and security. Contracts are won and lost and employment is contingent upon the successful tenderer employing the employees of the previous contractor. There are no guarantees of continuous employment. It may be that a portable long service leave scheme would be beneficial to contracting industries, as noted by Hall, P and Brown, C in the Review of the Entitlement to Long Service Leave (2000) 164 QGIG 236. However, as regrettable as it may be, the 1999 Act does not, in my view, create an entitlement to long service leave for employees of contracting industries at least where there is no requirement by the contracting party for the successful tenderer to employ the employees of the former contractor. Whether such a requirement would create an entitlement to long service leave has not been argued before me and a separate case would need to be conducted to determine that matter. In the case of Mr Burke I find that he is not a transferred employee within the meaning of s. 69 of the Act and thus does not have an entitlement to long service leave. The application is dismissed. G.K. FISHER, Commissioner. Appearances: Released: 13 August 2002 Mr K. Crank for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Mr G. Muir (Employer Services) and with him Mr B. Staines behalf of the respondent. -- 7 of 7 --